PS/GO Item 1
July 14,2011
\Vorksession
MEMORANDUM
July 12,2011
TO:
FROM:
SUBJECT:
Public Safety/Government Operations and Fiscal Policy Committee
Robert H. Drummer, Senior Legislative Attorney
YI\,9
Worksession: Bill IS-II, Police Labor Relations - Duty to Bargain
Bill IS-II, Police Labor Relations Duty to Bargain, sponsored by the Council President
on recommendation of the Organizational Reform Commission, was introduced on June 14,
2011. A public hearing was held on July 12.
Bill IS-II would make the scope of bargaining with the certified representative ofpolice
employees consistent with the scope of bargaining with unions representing other County
employees. The Council delayed introducing this Bill until after finalizing the FY12 Budget
because these process changes, if enacted, could not take effect until collective bargaining for
FY l3 begins in the fall.
Background
In its report to the Council dated January 31, 2011, the Organizational Reform
Commission (ORC), in
Recommendation
#21,
recommended amending the Police Labor
Relations Law to make the scope of bargaining with the certified representative of police
employees consistent with the scope of bargaining with unions representing other County
employees.
The full text of the recommendation is below.
The Erosion of Management Rights
The Police Collective Bargaining law establishes the scope of collective bargaining in County
Code §33-S0. Similar to the collective bargaining laws for Fire and general County employees,
the Police Collective Bargaining law requires the Executive to bargain over wages, benefits, and
working conditions. Section 33-S0(b) also establishes a list of "Employer rights" that the
Executive does not need to bargain. However, unlike the collective bargaining laws for Fire and
general County employees, §33-S0(a)(7) requires the Executive to bargain over the "effect on
employees of the employer's exercise of rights listed in subsection (b):' This provision is .
 PDF to HTML - Convert PDF files to HTML files
generally referred to as "effects bargaining." For example, §33-80(b )(3) grants the Executive the
employer's right to "determine the services to be rendered and the operations to be performed."
However, under effects bargaining the Executive would have to bargain with the union over the
effect on employees of the Executive's decision to modify the services performed. In practice,
"effe~ts.
bargaining" has becom.e. the exception that m.akes most management decisions subject to
I
bargammg'
m
'I·
•• _ _ _ _ _ _ _ _ _ _ _- - - " .
~
....
----------- -------------
------------,
"Effects bargaining" has hampered the ability of the Police Department to issue directives to
govern how police officers must operate. For example, several years ago, the Police Department
had to bargain with the FOP over a directive to implement the new computerized police report
writing system. This bargaining delayed the implementation of a new system that County
The FOP has recently delayed the
management established to improve efficiency.
implementation of all directives by refusing to respond to them.
~
We
recommend amending §33-BO(a)(7) to make the scope of bargaining consistent
with the scope of bargaining in the collective bargaining laws for Fire and general
County employees.
Executive's Response
In a memorandum to the Council President dated February 21, 2011, the Executive
responded to each of the 28 recommendations in the ORC report. The Executive did not take a
position on this recommendation. He stated:
21. Make the scope of bargaining consistent for all County agencies.
The ORC report includes several recommendations concerning the collective
bargaining process. Since we are in the midst of bargaining with all three of our
employee unions, I do not think it is appropriate to comment on the Commission's
recommendations at this time.
Bill 18-11, sponsored by the Council President on recommendation of the ORC would
implement ORC Recommendations #21.
Public Hearing
The Council held a spirited public hearing with 5 speakers on July 12, 2011. Vernon
Ricks, Co-Chair of the Organizational Reform Commission (©34-35) and Joan Fidler, President
of the Montgomery County Taxpayers League (©39) supported the Bill as a change that would
promote greater efficiency in the management of the Police Department and reduce operating
costs. John Sparks, President of the IAFF Local 1664 (©36-38) and Marc Zifcak, President of
the FOP Lodge 35 (©40-58) each opposed the Bill. Police Chief Thomas Manger testified that
the Bill would greatly enhance his ability to manage the Department more efficiently within the
confines of the duty to bargain over wages, benefits, working conditions, grievance process, and
health and safety issues. The Chief described several examples of how effects bargaining
2
 PDF to HTML - Convert PDF files to HTML files
prevented him from exercising a management right in a timely manner. Some of these examples
were described by the Chief in his responses to questions from Council staff attached at ©29-33.
The Chief also discussed the difference between exercising a management right affecting FOP
members and exercising a similar management right affecting civilian employees in the Police
Department under the collective bargaining law for general County employees. Mr. Zifcak:
provided a brief explanation of the FOP position on each of the examples discussed by the Chief.
Mr. Zifcak: strongly disagreed with the Chiefs description of the issues. The Councilmembers
anticipate additional discussion on these issues at the
PS/GO
Committee worksession scheduled
for July 14. Finally, MCGEO President Gino Renne provided his explanation of how "effects
bargaining" works under the collective bargaining law for general County employees during his
testimony on a related Bill.
Issues
1.
What is the legislative history of the "effects bargaining" provision?
Charter §51O, adopted by the voters in the 1980 general election, requires the Council to
enact a law providing for "collective bargaining with binding arbitration" with a representative
of County police officers. Bill 71-81, enacted by the Council on April 6, 1982, established the
Police Labor Relations Law (PLRL). The Bill, as introduced, was the product of negotiations
between County Executive Gilchrist and representatives of the Fraternal Order of Police (FOP).
The "effects bargaining" provision was added to the Bill at a Council Committee worksession.
I
The April 6, 1982 Council meeting minutes described the debate over "effects
bargaining.,,2 Personnel Director Hilliard explained that the decision to exercise a management
right was not subject to bargaining, but that the method of implementing it would be subject to
bargaining. The example discussed was the decision to layoff employees. The decision to lay
off employees would not be bargained, but the decision as to whom to layoff first would be.
Councilmember Fosler disagreed with this interpretation of "effects bargaining" and provided
the following legislative history:
[T]he Council defines 'effect' [referring to the "effect on employees of the
employer's exercise of rights'] in a restrictive sense. The word shall not be used
as a way of initiating collective bargaining over any items that are employer
rights. If the interpretation is expanded, the Council will have to consider
amendments to the law. (Minutes at p. 3866 at ©10)
Councilmember Scull moved to delete "effects bargaining," but the motion failed by a vote of 3­
2. (Minutes at pp. 3867-3868 at ©11-12)
Charter §5l1, adopted by the voters in the 1984 general election, authorized the Council
to enact a collective bargaining law for general County employees with arbitration or other
See the 2008 Office of Legislative Oversight Report on the History of the Collective Bargaining laws in
Montgomery County, pp. 46-58. The report is available at:
J
April 6, 1982 Council Legislative Minutes at pp. 3864-3868 at 11'J8-12.
3
 PDF to HTML - Convert PDF files to HTML files
impasse resolution procedures. Bill 19-86, enacted by the Council on June 24, 1986, established
collective bargaining for general County employees. The Bill, as introduced, permitted
bargaining over the "amelioration of the effect on employees when the exercise of employer
rights ... causes a loss of existing jobs in the unit." Municipal and County Government
Employees Organization (MCGEO) representatives objected to this language and requested an
amendment to include the full "effects bargaining" established in the Police Labor Relations
Law.
3
County Executive Gilchrist supported the narrower language in the Bill. James Torgesen
of the Personnel Office explained, "that the broader language was included in the police law
because, when it was written, management was unaware of the potential impact of 'effects'
bargaining...
4
The Council enacted the Bill without the broader "effects bargaining" provision.
Charter §51 OA, adopted by the voters in the 1984 general election, required the Council
to enact a collective bargaining law with binding arbitration for fire fighters. Fire fighters had
been previously added as a separate bargaining unit to the general County employee collective
bargaining law. Bill 21-96, enacted on July 23, 1996, established a separate collective
bargaining law with binding arbitration for fire fighters. The final law contains the same narrow
"effects" bargaining that was in the law for general County employees. The legislative history of
Bill 21-96 does not contain a debate over this provision.
"Effects bargaining" also became an issue during the Council's consideration of Bill 10­
00, enacted on June 6, 2000.
5
Bill 10-00, as introduced, would have expanded collective
bargaining rights under the Police Labor Relations Law to police sergeants and created a separate
bargaining unit for sergeants. County Executive Duncan proposed 3 primary amendments to the
Bill:
1.
add a separate bargaining unit for police lieutenants and captains in addition to the
separate unit for sergeants;
2.
remove lieutenants and captains from the bargaining unit if their primary duty
assignment involved human resources, internal affairs, legal, labor relations, or
policy development and compliance; and
3.
eliminate "effects bargaining" for the police supervisors bargaining unit.
Labor/Employee Relations Manager James Torgesen explained the request to eliminate
"effects bargaining" for the new police sergeants unit:
The duty to bargain the "effects" of an exercise of any of the statutorily defined
Employer rights creates restrictions and delays on the Employer's ability to act in
the management arena. An example of "effects" bargaining may be seen through
the impact on frequently utilized management prerogatives such as the transfer,
assignment and scheduling of employees. The use of these management rights is
critical to the ability of the Police Department to operate in an efficient and
effective manner in the delivery of police services. Before management may
proceed to initiate a change in how employees are transferred, scheduled or
assigned, the effect of the changes on employees may be subject to bargaining.
April 22, 1986 Public Hearing Transcript, p. 10 at © 13-14.
4
June 5. 1986 Council Legislative Minutes, pp. 3-4 at
©
15-17.
5
See the 2008
aLa
Report at pp. 13 3-13 9.
3
4
 PDF to HTML - Convert PDF files to HTML files
Consequently, appropriate notice and opportunity to bargain must be extended to
the exclusive representative. The result of any "effects" bargaining may place
other limitations on management's ability to act such as a notice requirement,
waiting period, opportunity for comment, compensation, etc. before a schedule
change or transfer may occur. See April 7, 2000 Torgesen memo, p. 3 at ©20.
FOP Lodge 35 President Walter Bader submitted a comprehensive written rebuttal to the
Executive Branch complaints about "effects bargaining." See Mr. Bader's June 2, 2000 letter at
©21-28. Mr. Bader argued that "effects bargaining" is a "bedrock" concept of American labor
law that would inevitably exist even if the Police Labor Relations Law did not expressly include
it.
6
Mr. Bader also disputed the Executive's argument that "effects bargaining" resulted in the
delayed implementation of most administrative directives.
Bill 10-00, enacted on June 6, 2000, added police sergeants to the existing bargaining
unit and left "effects bargaining" unchanged.
2. Do collective bargaining laws for public employees in other Maryland jurisdictions
contain an "effects bargaining" provision?
Council staff surveyed collective bargaining laws for State and County employees in
surrounding Maryland jurisdictions. The overwhelming majority of collective bargaining laws
do not contain an "effects bargaining" provision. Although an "effects bargaining" provision is
not unique to the Police Labor Relations Law, it is found only in State laws governing collective
bargaining with employees of the Washington Suburban Sanitary Commission (Public Utilities
Art. §18-207(a)(7)), the Maryland National Capital Park and Planning Commission
(Art.
28
§112.1(j))/ and the Montgomery County Housing Opportunities Commission (Housing and
Community Development Art. §16-308(a)(6)).
"Effects bargaining" is not provided in the collective bargaining laws covering County
employees in Frederick, Harford, Howard, Baltimore, Prince George's, and Anne Arundel
Counties or for Baltimore City employees. Neither the collective bargaining law covering State
Executive Branch employees (State Personnel and Pensions Art. §3-502) nor the statewide
collective bargaining laws covering certificated (Education Art. §6-408) and non-certificated
public school employees (Education Art. §6-5l0) contain an "effects bargaining" provision.
3. How has "effects bargaining" worked under the Police Labor Relations Law?
Mr. Bader cites
First National Maintenance Corp. v. NLRB,
452 US 666 (1981) as legal support for his contention.
However, the Supreme Court holding in this case was that an employer did not have to bargain with the union over
its decision to shut down one location and dismiss all of its employees working at that location. The language
quoted by Mr. Bader was not integral to the holding and was simply a passing reference. We would note that Bill
18-11, as introduced, is consistent with the dicta in this case since it would continue to require the Executive to
bargain over the amelioration of the effects of its exercise of a management right that resulted in a loss of bargaining
unit jobs.
7
Effects bargaining exists for general employees under Art. 28-112.1
0),
but not for police officers under
Art.
28 §5­
114.1.
6
5
 PDF to HTML - Convert PDF files to HTML files
The Police Chief's answers to questions about "effects bargaining" are at ©29-33.
Categorizing issues between the exercise of a management right and a mandatory topic of
bargaining is often difficult and subject to reasonable debate. Under the PLRL, a dispute over
the category a specific issue falls into must be resolved by the Permanent Umpire and a
reviewing court. These case by case administrative and judicial decisions would normally create
a body oflaw that the parties can refer to when new disputes arise over the duty to bargain over a
specific topic. However, under "effects bargaining," management must bargain over the effect
on employees of its exercise of a management right. Therefore, there is no reason for the parties
to distinguish between the duty to bargain over an issue as an effect of the exercise of a
management right or as a mandatory topic of bargaining.
The Chief provided the following examples of Police Department initiatives that could
fall under effects bargaining:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
PacketWriter
Mobile Automatic Fingerprint Identification System (AFIS)
Automatic Vehicle Locator (AVL)
E-citation
Holsters
Rifle sights
Standard Operating Procedures (SOP)
Administrative Directives
Trainer/Trainee relationships
Mandatory use of email
Proficiency advancements and time in grade
Uniforms at In-service training
Personal Patrol Vehicle (PPV) assignment
Evidence technician work hours
MC TimelTelestaff
The Chief estimated that bargaining to resolution over a minor issue can normally require
between 2 weeks and 90 days without impasse arbitration. Impasse arbitration would normally
require an additional 2 to 3 months. A more significant matter can take up to 2 years to resolve.
The Chief provided 4 examples where he attempted to exercise a management right to
increase department effectiveness and efficiency that was delayed or hindered by effects
bargaining. See the response to question 6 at ©32-33. The movement to a mandatory electronic
reporting system, PacketWriter, was delayed by 3 years of bargaining. The bargaining over the
effects of implementing the Automatic Vehicle Locator system resulted in an agreement
prohibiting the use of system data in disciplinary cases against an officer. Finally, the Chief has
never been able to require police officers to use email because the parties have been unable to
negotiate an agreement on this issue. The use of email remains voluntary. The department must
provide officers with printed communications since officers are not required to maintain a
County email account.
4. How does "effects bargaining" change the implementation of a management right?
6
 PDF to HTML - Convert PDF files to HTML files
The Police Chief is in a unique position to answer this question. The Police Department
consists of both sworn police officers belonging to the police bargaining unit under the PLRL
and civilian employees in the
SLT/OPT
bargaining units under the collective bargaining law for
general County employees represented by the Municipal and County Government Employees
Organization (MCGEO). The Chief compared the exercise of a management right affecting FOP
members with a management right affecting MCGEO members. See response to question 5 at
©31-32. Implementation of an Operational Change for MCGEO members of the Police
Department generally takes 3-4 weeks. A similar change in operations can require between
several days and 2 years to implement under "effects bargaining" with the FOP.
5. Should the Council enact
Bill 18-U
?
The broader scope of "effects bargaining" embodied into the PLRL in 1982 was never
copied into the next 2 collective bargaining laws enacted by the Council.
It
appears from the
legislative history described above, that this failure to include the broader "effects bargaining"
provision in later laws was debated and intentional. County Executive Gilchrist, who supported
"effects bargaining" during the debate on the PLRL in 1982, successfully opposed the same
provision during the Council debate in 1984. There is no logical reason to require a broader
scope of collective bargaining with police officers than other County employees. The Bill
creates a reasonable compromise between the broad "effects bargaining" provision and the need
to discuss
th~
amelioration of the effects on employees of the exercise of a management right
that
results in the loss of bargaining unit jobs.
Implementing a layoff is a critical decision that
should involve negotiations with the union over how it will be implemented. Implementing the
mandatory use of the County's email system is not.
Council staff recommendation:
approve
the Bill as introduced.
This packet contains:
Bill 18-11
Legislative Request Report
Council Legislative Minutes - April 6, 1982
Public Hearing Transcript April 22, 1986
Council Legislative Minutes June 5, 1986
April 7, 2000 Torgesen Memo
June 2,2000 Bader letter
Police Chiefs answers
Testimony
Vernon Ricks
John Sparks
Joan Fidler
Marc Zifcak
Circle
#
1
7
8
13
15
18
21
29
34
36
39
40
F:\LA\\l\BILLS\1118 Police Bargaining· ORC\PS·GO Memo. Doc
7
 PDF to HTML - Convert PDF files to HTML files
Bill No.
18-11
Concerning: Police Labor Relations
Duty to Bargain
Revised: June 3, 2011 Draft No.1
Introduced:
June 14, 2011
Expires:
December 14, 2012
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
_N:...:.o::::!n~e:...-
_ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President on the reconunendation of the Organizational Refonn Conunission
AN
ACT
to:
(1)
(2)
modify the scope of bargaining with the certified representative of police employees;
and
generally amend County collective bargaining laws.
By amending
Montgomery County Code
Chapter 33, Personnel and Human Resources
Sections 33-80 and 33-81
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 18-11
1
2
3
Sec.
1.
Sections 33-80 and 33-81 are amended as follows:
33-80.
(a)
Collective bargaining.
Duty to bargain; matters subject to bargaining. A certified employee
organization and the employer must bargain collectively on the
following subjects:
(I)
Salary and wages, provided, however, that salaries and wages
4
5
6
7
8
shall be uniform for all employees in the same classification;
(2)
(3)
Pension and retirement benefits for active employees only;
Employee benefits such as, but not limited to, insurance, leave,
holidays and vacation;
(4)
Hours and working conditions, including the availability and use
of personal patrol vehicles;
(5)
Provisions for the orderly processmg and settlement of
grievances concerning the interpretation and implementation of
the collective bargaining agreement, which may include binding
third party arbitration and provisions for exclusivity of forum;
(6)
(7)
Matters affecting the health and safety of employees; and
Amelioration of the [The] effect on employees when the
employer's exercise of rights listed in subsection (b) causes
f!
loss
of existing jobs in the unit.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
*
33-81.
Impasse procedure.
*
*
*
*
23
24
*
(b)
(I)
During the course of collective bargaining, either party may
declare an impasse and request the services of the impasse
neutral. If the parties have not reached agreement by January 20,
an impasse exists.
25
26
27
0)
f:\Iaw\bills\ 1118 police bargaining - orc\bill 1.doc
 PDF to HTML - Convert PDF files to HTML files
BILL
No.
18-11
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
*
(3)
*
*
If the impasse neutral, in the impasse neutral's sole discretion,
finds that the parties are at a bona fide impasse, the impasse
neutral [shall] must require each party to submit a final offer
which [shall] must consist either of a complete draft of a
proposed collective bargaining agreement or a complete package
proposal, as the impasse neutral [shall choose] chooses. If only
complete package proposals are required, the impasse neutral
[shall] must require the parties to submit jointly a memorandum
of all items previously agreed upon.
(4)
The impasse neutral may, in the impasse neutral's discretion,
require the parties to submit evidence or make oral or written
argument in support of their proposals. The impasse neutral may
hold a hearing for this purpose at a time, date and place selected
by the impasse neutral. Said hearing [shall] must not be open to
the public.
*
(C)
*
*
An impasse over a reopener matter [or the effects on employees of
an
exercise of
an
employers right] must be resolved under the procedures
in this subsection. Any other impasse over a matter subject to collective
bargaining must be resolved under the impasse procedure in subsections
(a) and (b).
(l)
[Reopener matters.
(A)]
If the parties agree in a collective
bargaining agreement to bargain over
an
identified issue on or
before a specified date, the parties must bargain under those
terms. Each identified issue must be designated as a "reopener
matter."
f:\law\bills\1118 police bargaining - orc\bill 1.doc
 PDF to HTML - Convert PDF files to HTML files
BILL
No.
18-11
55
56
[(B)] 2.
When the parties initiate collective bargaining under
[subparagraph (A)] paragraph
1,
the parties must choose, by
agreement or through the processes of the American Arbitration
Association, an impasse neutral who agrees to be available for
impasse resolution within 30 days.
[(C)] 3. If, after bargaining in good faith, the parties are unable to
reach agreement on a reopener matter by the deadline specified in
the collective bargaining agreement, either party may declare an
Impasse.
[(D)] 4. If an impasse is declared under [subparagraph (C)] paragraph
57
58
59
60
61
62
63
64
65
J,
the dispute must be submitted to the impasse neutral no later
than 10 days after impasse is declared.
((E)]
5.
66
67
68
The impasse neutral must resolve the dispute under the
impasse procedure in subsection (b), except that:
[(i)]
A. the dates in that subsection do not apply;
69
70
71
72
73
74
[(ii)]
B. each party must submit to the impasse neutral a final
offer on only the reopener matter; and
[(iii)] C. the impasse neutral must select the most reasonable of
the parties' final offers no later than 10 days after the
impasse neutral receives the final offers.
[(F)] 6. This subsection applies only if the parties in their collective
bargaining agreement have designated:
[(i)]
75
76
77
78
A. the specific reopener matter to be bargained;
[(ii)] B. the date by which bargaining on the reopener matter
must begin; and
79
U
(:4~\
f:lJaw\bills\1118 polJee bargaining - orc\bill 1.doc
 PDF to HTML - Convert PDF files to HTML files
BILL
No.
18-11
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
[(iii)] C.
the deadline by which bargaining on the reopener
matter must be completed and after which the impasse
procedure must be implemented.
[(2)
Bargaining over the effects of the exercise of an employer right.]
[(A) If the employer notifies the employee organization that it
intends to exercise a right listed in Section 33-80(b), the
exercise of which will have an effect on members of the
bargaining unit, the parties must choose by agreement or
through
the
process
of the
American
Arbitration
Association an impasse neutral who agrees to be available
for impasse resolution within 30 days.]
[(B)
The parties must engage in good faith bargaining on the
effects of the exercise of the employer right. If the parties,
after good faith bargaining, are unable to agree on the
effect on bargaining unit employees of the employer's
exercise of its right, either party may declare an impasse.]
[(C)
If the parties bargain to impasse over the effects on
employees of an exercise of an employer right that has a
demonstrated, significant effect on the safety of the public,
the employer may implement its last offer before engaging
in the impasse procedure. A party must not exceed a time
requirement of the impasse procedure. A party must not
use the procedure in this paragraph for a matter that is a
mandatory subject of bargaining other than the effects of
the exercise of an employer right.]
G
"''''''''1s11118
poli"
b""".", -
0'' ' "
1.doc
 PDF to HTML - Convert PDF files to HTML files
BILL NO. 18-11
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
[(D) The parties must submit the dispute to the impasse neutral
no later than lO days after either party declares an impasse
under subparagraph (B).]
[(E)
The impasse neutral must resolve the dispute under the
impasse procedures in subsection (b), except that:
(i)
(ii)
the dates in that subsection do not apply;
each party must submit to the impasse neutral a final
offer only on the effect on employees of the
employer's exercise of its right; and
(iii)
the impasse neutral must select the most reasonable
of the parties' final offers no later than lO days after
the impasse neutral receives the final offers and, if
appropriate, must provide retroactive relief.]
[(F)
If the impasse neutral has not issued a decision within 20
days after the impasse neutral receives the parties' final
offers, the employer may implement its final offer until the
impasse neutral issues a final decision.]
Approved:
123
Valerie Ervin, President, County Council
124
Date
Approved:
125
Isiah Leggett, County Executive
Date
f:\law\bills\1118 police bargaining· orc\bil11.doc
 PDF to HTML - Convert PDF files to HTML files
LEGISLATIVE REQUEST REPORT
Bill 18-11
Police Labor Relations
-
Duty to Bargain
DESCRIPTION:
Bill 18-11 would make the scope of bargaining with the certified
representative of police employees consistent with the scope of
bargaining with unions representing other County employees.
The Organizational Reform Commission recommended this change
to the Police Labor Relations Law.
To increase the authority of the Chief of Police to exerCIse
management rights.
County Executive, County Attorney, Human Resources
To be requested.
To be requested.
To be requested.
To be researched.
Organizational Reform Commission Report.
Robert H. Drummer, Senior Legislative Attorney
Not applicable.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
None.
F:\LAW\BILLS\1118 Police Bargaining - ORC\Legislative Request Report.Doc
t.\Jaw\b;UsI1118 police bargaining - oroijegislative request
re~
 PDF to HTML - Convert PDF files to HTML files
3864
4/6/8'2
Re:
Deferral of Bill No. 76-81. Open
Meetings for Homeowners Associations
Bill No. 76-81, Open Meetings for Homeowners Associations, was called
for final reading.
The Council had before it for consideration Draft No.4,
dated March
30, 1982.
Due to lack of time, the Council postponed enactment of Bill No'. 76-81,
and requested that the Housing Committee meet with interested people to discuss
the amendments proposed by the Office of Consumer Affairs.
(The Legislative Session was recessed ,at 1:10 P.M., and reconvened at
2:30 P.M.)
Re:
Enactment of Bill
No.
71-81.
Collective
Bargainin~
for Police
-
reading.
Bill No. 71-81, Collective Bargaining for Police, was called for final
Mr. Hillman, Special Counsel for Labor Relations, appeared before the
Council to respond to inquiries.
Mr.
Hillman stated'that the confusion in the Council's earlier discussion
,resulted from the fact that Draft No.4 does not reflect an amendment made by
the Council at its last worksession on this bill.
Subsection (1), page 20,
through subsection (2), page 21, were deleted in their entirety and were
included in Draft No. 4 by mistake.
Without objection, the Council agreed to delete all of the language
-
in subsections (1) and (2), pages 20 and 21.
The Council reviewed the remainder of Bill No. 71-81 and raised
questions as to the various provisions of the bill.
Councilman Fosler stated that he has had a difference of interpretation
with the Executive Branch as to the meaning of the phrase "effect on employees"
as used in Section 33-80(a)(7), page 18, as being an item that is subject to
collective bargaining as a result of the exercise of an employer's right.
Mr.
Hilliard would draw a distinction between the decision itself (such as a decision
to layoff employees), and the way in which the decision is implemented (Which
employees to layoff first).
The former would be prohibited, but the latter would
 PDF to HTML - Convert PDF files to HTML files
3865
4/6/82
be bargainable in Mr. Hilliard's interpretation.
However, Councilman Fosler
expressed the view that the employer's rights extend to the implementation of
the decisions; the "effect" is the consequence of the implementation.
Mr.
Hillman stated that he would agree with Councilman Fosler's
interpretation.
The effect is the consequence to the employees.
In a common
labor relations situation, an employer would not have to bargain over the decision,
to ahut down a plant, nor the implementation of the shutdown.
However, the
employer does have a duty to bargain over the effects on employees, such a$
severence pay and seniority rights.
President Potter expressed the view that a more precise phrase would
be "bargain over the amelioration of the effects on employees."
Mr. Hillman expressed the view thst the phrase suggested by President
Potter is unnecessary because the words that have been used already have well-
established meanings.
At the suggestion of President Potter and without objection, the Council
restored the word
~
in line 4, page 22.
Mr. Hillman responded to questions of Councilmembers concerning provisions
that have been deleted from the bill because they have been addressed in other
contexts or locations in the bill.
Upon motion of Councilman Fosler, duly seconded and without objection,
the Council restored the language of subsection (b)(2), page 19, as follows:
To maintain and imorove the efficiency and effectiveness of operations;.
After discussion and without objection, the Council inserted the word
only after "employees" on line II, page 18, to clarify that collective bargaining
is permitted concerning pension and retirement benefits for active employees only.
During the discussion of the addition of the word "only" on line II, page
18, the Council considered adding the word to the body of Section 33-80 to clarify
that the listing of bargainable items was exclusive.
However, after consideration
Jll
~
of the fact that some subjects may arise in the future that are not enumerated,
the Council added the word "only" on line 11 to clarify that the pensions of
already-retired employees are not bargainable.
 PDF to HTML - Convert PDF files to HTML files
3866
4/6/82
-
At the suggestion of President Potter, upon motion of Councilman
Gudis, duly seconded and without objection, the Council deleted the word [such]
'from line 18, page 23, and inserted the words necessary to implement the
altreement after 1:he word "action" in the
11_
line.
At the suggestion of President Potter and without objection, the
Council deleted the word [most1 from line 5, page 25, and inserted in lieu
thereof~.
The Council also correc1:ed the spelling of the word "empowered"
on line 18, page 30.
President Potter requested that the record reflect the intent of the
Council that deletion of the section concerning "Use of Official Time"
page 31
doe~
from
not give employees the right to use official time for union
business.
Mr. Hillman indicated that this
is
an item that is left to the
bargaining process.
At the suggestion of President Potter and withou1: objection, the
COuncil inser1:ed a comma after the word "interest" oil. the sixth line of
subsection (c), page 32.
(The Council recessed from 3:10 P.M. to 3:30 P.M: to allow Councilmembere
an opportunity to read through Bill No. 71-81 in view of the error that had been
made in Draft No.4.)
At the suggestion of Mr. Hillman and without objection, the Council
deleted [33-80(c)(2)] from line
30, page 9; line 7, page 10; and line 18, page
11; and deleted the phrase [disagreement over obligation to bargain collective1y1
-
from line 1, page 10.
At the suggestion of President Pot1:er and without objection, the
Council deleted the word [jointly] from line 23, page 24, and inserted the
word jointly after the word "submit" on line 24, page 24.
'Councilman Fosler stated 1:ha1: 1:he legislative history of Bill No. 71-81
should be clear tha1: 1:he Council defines "effect" as used in Section 33-80(8)(7)
in a restrictive sense.
The word shall not be used as a way of ini1:i8ting
If the interpretation
collective bargaining over any items that are employer rights.
is expanded, the Council will have to consider amendments to the law.
-"---­
 PDF to HTML - Convert PDF files to HTML files
3867
4/6/82
Councilman Scull stated that he agrees with Councilman Fosler's
views on the meaning of the word "effect;" however, he does not believe that
subsection (7) of Section 33-80(a) is needed.
He believes that the language
of the subsection is vague and the examples given during the worksession as to
problems that might arise were not great enough to justify leaving such vague
wording in the law.
Mr.
Hillman stated that an employer right is the ability to layoff
employees.
The union might want to bargain about how to achieve the layoff,
such as whether it should be done on the basis of seniority, on the basis of
job classification, or by department.
Those are the kinds of effects on
employees that unions traditionally bargain about, and are the kinds of
effects intended by Section 33-80(a)(7).
The decisiorsabout whether to lay
off and how many employees are to be affected are clearly employer's rights.
Councibnan Scull moved, duly seconded, that the Council delete
subsection (7) from Section 33-80(a), page 18.
Councilman Scull expressed the view that the language of subsection
(7) is vague and will raise more problema than it will solve.
The employer
has certain rights to hire, transfer, assign and schedule employees, and cannot
do anything .that does not have an effect on employees.
He pointed out that
establishing a legislative history does not have the force and effect of law;
it reflects only the views of Councilmembers.
laws
is
significant.
Every word used in labor relations
He stated that he has not heard a strong argument for
retaining the subsection.
In response to President Potter's suggastion that the phrase "bargain
over the amelioration of the effects on employees" be inserted in subsection
(7),
Mr.
Hillman stated that that is largely what the subsection means, but
there may be t:!.mes when the employer does not want to "ameliorate" the effects.
An
employer may want to bargain and make the effects on employees harsher.
Mr.
Katz, representing the Fraternal Order of Police, noted that the
Permanent Umpire will make the decision about which items are bargainable and
which are not.
the law.
If the Council does not like his decision, the Council can amend
 PDF to HTML - Convert PDF files to HTML files
3868
4/6/al
-
Councilman Scull's motilm failed. Councilmembers Gelman _d Scull
voting in the affirmative. Councilmembers Potter. Fosler and Crenca voting
in the negative. Councilman Gudis not voting and Councilwdman Spector being
temporarily absent.
President Potter stated that he voted in the negative because he
believes that there is a substantial area of concern.
The language may be
vague, but he believes that there is a basic advantage in leaving fairly
broad what can be negotiated.
if too much is excluded.
Co~ci1man
It would be disadvantageous to both parties
Fosler expressed the view that there are legitimate
One of the key factors
. concerns as
:'0
how subsection
(7)
will be interpreted.
in determining Whether it will work successfully is how reasonable both parties
are and how good the Permanent Umpire is in making his determinations.
a subject that bears watching to see what develops.
require modification in the future.
Upon motion of Councilwoman Crenca. duly seconded and without objection,
the Council approved the following 8IIIendments as reflected in Draft No.4 of
Bill No. 71-81 (amendments approved by the Council during this Legislative
Session are. in addition; capital letters indicate language added after introduction
and strike-throughs indicate language deleted after introduction of the bill):
It
1s
It is an item that may
 PDF to HTML - Convert PDF files to HTML files
1
2
MONTGOMERY COUNTY COUNCIL
3
4
5
6
PUBLIC HEARING
April 22, 1986
7
- - - - - - - -
Bill 19-86
- - - - -x
8
9
- - - - - - - - - - - - -
*
*
*
-x
10
11
The hearings were held in the Third Floor
Hearing Room, County Office Building, 100 Maryland
Avenue, Rockvil
, Maryland, at 7:30 p.m., William
12
13
14
Hanna, President, presiding.
15
16
17
PRESENT:
WILLIAM HANNA
NEAL POTTER
SCOTT FOSLER
DAVID SCULL
ESTHER P. GELMAN
MICHAEL GUDIS
ROSE CRENCA
President
Vice President
Member
Member
Member
Member
Member
18
19
20
21
22
23
24
25
NEAL R. GROSS
COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVENUE, N.W.
(202) 234:4433
WASHINGTON, D.C.
20005
(202) 232-6600
 PDF to HTML - Convert PDF files to HTML files
10
1
The Executive Branch is opposed to any
expansion of the meaning of effects bargaining under
Section 107(a)(7). Without careful delineation of of
the subject matter in this area! negotiating the effects
on employees of management actions can undermine the
employer's ability to function.
As an example! management must be in
position to transfer employees
a
2
3
4
5
6
7
8
9
10
11
12
13
based on organizational
typically! to improve the effectiveness of
operations and delivery of services.
Under the
suggested amendment! management could be precluded
from transferring bargaining unit employees until the
economic impact of the transfer on employees was
negotiated.
The preservation of employer rights ,is
important in assuring that the Government's ability
to manage programs and provide services in an efficient
and effective manner is not obstructed.
The Executive
M
15
16
17
18
19
Branch supports the clarification and the elaboration
of these rights in contrast to what is currently in the
Police law.
In particular! management must have the
right to set standards and take advantage of new
technology or research which improves the delivery
of services.
The mechanics of the bargaining process
NEAL R. GROSS
COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVENUE, N.W.
20
21
22
23
24
25
(202) 234-4433
WASHINGTON, D.C.
20005
(202) 232-6600
 PDF to HTML - Convert PDF files to HTML files
,_.
__
._--_._-
......
-
......
---------­
APPROVED
COUNTY COUNCIL FOR MONTGOMERY COUNTY, MARYLAND
Thursday, June 5, 1986 Rockville, Md.
The County Council for Montgomery County, Maryland, convened in the
Council Hearing Room, Stella B. Werner Council Office Building, Rockville,
Maryland, at 10:15 A.M. on Thursday, June 5, 1986.
PRESENT
William E. Hanna, Jr., President
Esther P. Gelman
Rose Crenca
ABSENT
Neal Potter, Vice President
Michael L. Gudis
David L. Scull
Scott Fosler
The President in the Chair.
SUBJECT:
Executive Regulation No. 145-85. Personnel Regulations
The memorandum to the Council from
Director Spengler, dated June 3, 1986, setting forth
.~e~~
• the provision in Section 1-13(c) regarding the
receive a remedy from the date of filin
an
el Office that no harm is done to t .
p10yee until a
position
decision
re
the reclassification
request~g.P
evance, or appeal,
and, therefore, there
eed for a retroactive
~lon;
the concern of'
Mr. Thompson, attorney for
tgomery Count
ent Employees'
Organization (MCGEO) that the p
n of S
1-13 eliminates the
are likely to affect large
retroactive provision for rea1locat
classes of employees such as the nu
tains it for individual
various Councilmembers that
position reclassifications; conce
future reclassification/reallo
actions no
as long as it took to
reclassify the nurses; the f
ear cycle for
reclS:~~)ication
reViews and
the ability of the Perso
fiee to keep up with
thaa~edule;
the opinion
of Councilmember Gelma
it was inappropriate for the"€ !
to appeal a
stem Protection Board regarding the
sification
decision of the Me
of the nurses,
r desire for the County Attorney to brief
onsult
with the Coun
efore initiating such action; the desire of
Councilmemb
otter to differentiate in Section 1-13 between those
equest routinely at the beginning of a five-year rec1assif
who file
1e in order to obtain the maximum benefit if their position is
ified or reallocated upwards, and those cases where retroactivity
fied, and his inability to find the appropriate language to make the
----------------------------------------------=-----~-----------------------------------
 PDF to HTML - Convert PDF files to HTML files
.
3
6/5/86
'-
On
page 31, lines 13 through 17, delete subsection (d) of Section
6-4, Probationary Period, in its entirety;
Agreed to meet again to review the Personnel Regulations from 1:30
to 4:30 P.M. on June 6 and from 2:00 to 5:00 P.M. on June 19, with
the day of June 27 being held for an additional worksession if
needed.
(The Council recessed at 12:20 P.M. and reconvened at 2:14 P.M.
SUBJECT: Bill No, 19-86. County Employee Collective Bargaining
ISSUES DISCUSSED: The staff summary, dated June 5, 1986, setting forth issues
on the subject continued from the last worksession of May 29, 1986; Issue 4.D.
of the summary, Binding Grievance Arbitration; the proposed amendment to
pages 19 and 20 of the subject bill that would require binding grievance
arbitration for discipline and discharge cases and advisory arbitration for
other cases, unless the parties agree that the decision in a particular case
will be binding.
-
ACTION:
Agreed to retain the language contained in the bill on
pages 19 and 20 regarding binding arbitration.
ISSUES DISCUSSED: Issue 4.E, of the summary, "Effects" Bargaining; the
proposed amendment to page 20, lines 4 through 6, that would substitute the
broad language from the police collective bargaining law on "effects"
bargaining for the language in the bill which confines "effects" bargaining to
the exercise of management rights when the exercise of management rights
causes the loss of bargaining unit jobs; the County Executive's opposition to
the amendment, as set forth on pages three and seven of his memorandum of
May 29, 1986; the statement by Mr, Thompson, attorney representing MCGEO
(Local 400), that the broader language is usually included in collective
bargaining legislation, and is needed in the subject bill; the statement by
Mr. Rogers, representing the County Executive, that the amendment should not
be included in the bill because it would limit the power of the government to
act in emergency and security situations and to make changes within the
government involving technology and standards; the statement by Mr. Torgesen,
staff of the Personnel Office, that the broader language was included in the
police law because, when it was written, management was unaware of the
potential impact of "effects" bargaining; the ,opinion of Mr. Willcox, special
attorney, that the inclusion of the amendment could delay the implementation
of a government action which might result in litigation; President Hanna's
belief that inclusion of the amendment might interfere with the government's
ability to implement improvements; Councilmember Potter's suggestion that an
amendment might be drafted that would distinguish between actions the
government must take in carrying out its responsibilities and actions the
government could take to harass employees; Councilmember Potter's belief that
a broader definition of "grievance procedure" is needed; the statement by
Councilmember Fosler concerning the need for continuous communication between
employees
and
employers when colle'ctive
bargaining
fer public
e~ployees
is
initiated
to
avoid
misunderstandings, a:ld his support of the provision
---------------_
......
',
.,
..
 PDF to HTML - Convert PDF files to HTML files
4
6/5/86
included in the bill on "effects" bargaining; whether a government action .
resulting in the relocation of an employee's work place should be a subject of
collective bargaining; Counci1member Gelman's suggestion that the bill could
be amended to provide priority transfer to other County positions for
employees who are being relocated similar to the priority granted to County
employees who have lost their jobs as a result of a reduction in force action.
ACTION:
Agreed to support the language in the subject bill regarding
"effects" bargaining (subsection 33-107(7) unless an acceptable
amendment is drafted, as suggested by Councilmember Potter, that"
would distinguish between employer rights that must be exercised by
the government and employer rights that might be exercised by the
government as a form of employee harassment.
Adopted the following amendment proposed by Mr. Thompson:
for
[.J
and add unless another date for notification is agreed upon
by the parties.
In
subsection 33-107(b) (17), after "representative," substitute
.J..
ISSUES DISCUSSED: Issue 6 of the summary, Bargaining Impasse to be Broken
with Fact-finding, not Binding Arbitration (Section 33-108); the statement by
Mr.
Thompson in opposition to the procedure set forth in the subject bill for
the submission of the recommendations of the mediator/fact-finder and both
negotiating parties to the County Council because he believes negotiators will
make a
g~te~ffort
to reach an agreement on issues if only the report of
the mediator/fact-finder is submitted to the Council when the parties fail to
reach an
ag~eement;
Counci1member Hanna's observation that the subject bill
provides that, after the mediator/fact-finder makes recommendations on dispute
issues, the parties are permitted to bargain an additional 10 days before the
report of the mediator/fact-finder and the position of the two parties are "
submitted to the Council; the statement by Councilmember Fosler concerning the
Personnel Committee's review of this issue, and its support of Section 33-108,
as written; Counci1member Scull's concern that the Council's role in the
bargaining process under the subject legislation is too broad and should be
limited to budgetary and legislative actions; the language in the law
(subsection 33-108(k)) which indicates that actions taken by the Council in
resolving issues that are in dispute shall not be part of the agreement
between parties unless the parties specifically incorporate them in the
agreement; Mr. Willcox's suggestion that additional language could be added to
indicate that matters that are still in dispute or that do not involve
legislation or significant expenditure of capital will not be included in the
contract; Counci1member Potter's concern regarding the language in subsection
33-l08(i) which indicates that the Council will state its reasons for any
intent to reject any part of the items agreed to by the negotiating parties;
Mr. Willcox's suggestion that subsection 33-l08(i) could be revised for
clarification; the need for a technical amendment in the last sentence of
33-l08(g).
o
ACTION:
Amended, without objection, subsection 33-l08(g), the last sentence,
to substitute to which the parties ha'Ie for (that has been agreed]
and to add
..L
o
ait,er '·to"
n
 PDF to HTML - Convert PDF files to HTML files
OFFICE OF HUMAN RESOURCES
Douglas M. Duncan
County Executive
Marta Brito Perez
Director
MEMORANDUM
April 7, 2000
TO:
VIA:
FROM:
SUBJECT:
Michael Faden, Senior Legislative Attorney
Marta Brito Perez, Director, Office of Human Resources
James E. Torgesen, LaborlEmployee Relations
,
• C
'?
- ' . -."
• _
.'
J
ManageL.~ ~;;:'-1:,.
__
J
Bill No. 10-00 - Collective Bargaining -Police Supervisors
You have requested additional explanation and comments from the Executive Branch
concerning the amendments affecting collective bargaining rights for police supervisors as
proposed by the County Executive. The following is an explanation of the rationale for these
amendments addressing the three areas affected; unit structure, position exemptions and scope of
bargaining.
Unit Structure
The Police Labor Relations Law, as in each of the other County labor laws, includes as a
critical component of the law the definition of a unit of representation for the purpose of
collective bargaining. In determining an appropriate unit of representation, labor relations
criteria that are commonly used include an evaluation of: the desires of employees, the history of
representation, the extent of union organization aFld community of interest. While all four
elements may have impact on unit determination, community of interest is of prime importance.
Community of interest generally includes similarities in duties, skills and working conditions.
Desires of employees. To formulate a position on this matter, the Chief of Police met with all
supervisors within the Department. Two separate meetings were held, one with sergeants and
one with all other supervisors. The Chief concluded from those two meetings that employees in
the ranks ofsergeant, lieutenant, and captain were interested in having their wages, benefits, and
working conditions established through the collective bargaining process.
History of representation. Over the years, various police organizations have represented the
interests of police supervisors at all ranks. In the public testimony on the bill, the Fraternal
Order of Police (FOP) emphasized its history of individual representation of sergeants. In fact,
the FOP has been active in the individual representation of supervisors at all levels. Likewise,
the Alliance of Police Supervisors has represented supervisors of all ranks in various capacities.
--------~~~~~~~~--~----~
101 Monroe Street • Rockville, Maryland 20850
~
 PDF to HTML - Convert PDF files to HTML files
Michael Faden
Collective Bargaining - Police Supervisors
Page 2
In the public testimony, the FOP contended that the structure of a separate unit including
all three supervisory ranks \\,111 have the "unit be represented by a company union." The
proposed amendments do nothing to alter the manner in which bargaining unit employees select
their chosen representative. The FOP or any other labor organization is free to compete for the
representation rights of the bargaining unit. The representative will be determined by a majority
of the eligible employees voting. If unit members do not approve of the representation, the law
provides a means to change the representative. To suggest that employees would somehow
permit an employer-sponsored organization sorely underestimates the intelligence and desire for
self determination of the employees involved.
Extent of union organization. Throughout the metropolitan area and Maryland, police
supervisors have organized for the purpose of collective bargaining in a number ofjurisdictions.
The unit structure is mixed. Attached is a chart which provides the jurisdiction, labor
organization, unit status, and ranks involved. The public testimony indicated that Prince
George's County had one unit that included all police officers through lieutenant. The unit
structure in Prince George's County actually provides for a separate unit for supervisors, but for
bargaining purposes the supervisors are included under the same labor agreement as the non­
supervisory personnel.
Community of interest. The County Executive proposed amendments cre'!lte a separate
supervisory bargaining unit to include sergeants, lieutenants and captains. These three ranks
share a primary and common job duty: the responsibility for supervision of police employees and
resources. The sergeant has day-to-day responsibility for shift supervision including assigning
work, reviewing performance, approving leave, and recommending and approving training. The
lieutenant is the principal supervisor of all police patrol shifts and special assignment teams. The
captain is the principal supervisor of an operational unit. Included in the supervision at all levels
is the responsibility for the administration and enforcement of labor agreements on behalf of the
County as the employer. A separate supervisory unit preserves the identity of the supervisory
structure.
Although compensation and benefits are similar to the existing police bargaining unit as
the result of "pass through," supervisors have their' own salary schedule. Also, although
sergeants do work the same shift structure as th"ose whom they supervise, as noted earlier their
primary role is one of supervision.
Creating a separate supervisory unit also helps eliminate conflicts of interest that arise
when supervisors are placed in the same unit as non-supervisory employees. Supervisors must
apply the many provisions of the contract to the employees they supervise. As disagreements
arise concerning the application of the contract the interests of the supervisor are blurred if they
are covered by the same agreement that they are being required to enforce. For example, in a
grievance proceeding, subordinate employees might expect supervisors to act more like
employee advocates than representatives of management if both are part of the same unit.
The public testimony stated that the County Executive's proposed amendments are
seeking to "drive a wedge" between supervisory and non-supervisory employees. The focus of
 PDF to HTML - Convert PDF files to HTML files
Michael Faden
Collective Bargaining - Police Supervisors
Page 3
the proposed amendments is on the supervisory community of interest.
It
is the County's
position that the proposed unit structure will further identify and preserve this important element
within the Police Department.
Position Exemptions
The Executive Branch amendments seek to exempt from coverage employees who
perform certain critical functions within the police department impacting labor relations.
Supervisory employees
in
human resources, legal, labor relations, internal affairs, policy
deVelopment and compliance should be excluded from the bargaining unit. Supervisory
personnel in these work units are actively engaged in representing Departmental management
interests and or assisting in the formulation of policies which impact areas affecting labor
relations.
Scope of Bargaining
The requested amendments preclude bargaining on the "effects" of the Employer's
exercise of a management right for the proposed supervisory unit. The duty to bargain the
"effects"of an exercise of any of the statutorily defined Employer rights creates restrictions and
delays on the Employer's ability to act in the management arena.
An
example of "effects"
bargaining may be seen through the impact on frequently utilized management prerogatives such
as the transfer, assignment and scheduling of employees. The use of these management rights is
critical to the ability of the Police Department to operate in an efficient and effective manner in
the delivery of police services. Before management may proceed to initiate a change in how
employees are transferred, scheduled or assigned, the effect of the changes on employees may be
subject to bargaining. Consequently, appropriate notice and opportunity to bargain must be
extended to the exclusive representative. The result of any "effects" bargaining may place other
limitations on management's ability to act such as a notice requirement, waiting period,
opportunity for comment, compensation, etc. before a schedule change or transfer may occur.
The requested amendments retain the status quo for the non-supervisory bargaining unit and
provide, in essence, a scope of bargaining for supervisory employees which is consistent with
bargaining rights extended to all other County employees.
In summary, the Executive's proposed amendments provide a reasoned approach to
establishing the appropriate collective bargaining Unit for supervisors. In particular, we believe
that the proposed unit structure will preserve the supervisory community of interest. We look
forward to addressing these issues with the Council and employee representatives.
cc: Charles A. Moose, Chief of Police
Bruce Romer, Chief Administrative Officer
 PDF to HTML - Convert PDF files to HTML files
I\'Iontgomery County Lodge 35, Inc.
June 2, 2000
c::::.
c::::;)
Z
'-
c::
1"'1
,
~:'.
Honorable Derick Berlage
Montgomery County Council
100 Maryland Avenue
Rockville, Maryland 20850
Bill 10-00
Dear Mr. Berlage:
• I".:)
.~
(-:
,
a
c..,)
:z:,
-
'-.
.;.',
1'""'.
..
Collective Bargaining
-
Police Sergeants
Again, on behalf of Lodge 35 and its members, including police sergeants, I
want to thank you and the co-sponsors of Bill 10-00 for supporting the sergeants
collective bargaining bill, legislation which you appropriately indicated is long overdue.
As stated in prior correspondence and statements before the MFP Committee,
police sergeant collective bargaining is very common in Maryland and throughout the
country. Similarly, the inclusion of police sergeants and even lieutenants within the
same bargaining unit, or under the same collective bargaining agreement, is an
established practice.
Unfortunately, the major issues are being distorted by the irrational objection of
the administration to so-called "effects bargaining." This distraction must, we feel, be
addressed head-on to avoid future controversy, litigation, and misperception.
Moreover, "effects bargaining" has been used as a red herring by our opponents.'
The stated purpose of the Police Lab?r Relations Act ["PLRA
"1
is "to promote a
harmonious, peaceful and cooperative relationship between the county government and
its
police employees and to protect the public by assuring, at all times, the responsive,
orderly and efficient operation of the police department." The law further recognizes
that "[s]ince unresolved disputes in the police service are injurious to the public and to
police employees as well, adequate means should be provided for preventing such
unresolved disputes and for resolving them when they occur." PLRA
§
33-75.
We have honored this public policy and, indeed, since April 1982 when the
current law was enacted, there have been no job actions by police officers; no picket­
ing; no slowdowns; and no other actions that impaired our ability to serve the public.
This is a significant tribute to a thoughtfully crafted law that was the result of hard
work by the County Council, the Gilchrist Administration, and Lodge 35.
18512 Office Park Drive
Montgomery Village, MD 20886
F..\ X
(301) 9484286 •
(301) 590-0317
 PDF to HTML - Convert PDF files to HTML files
Honorable Derick Berlage
Bill 10-00
June 2, 2000
Page Two
.
Our law was the first collective bargaining law enacted in Montgomery County.
It mcludes specific reference to "effects bargaining." On the other hand, the County
Employees and Firefighter laws do not make such specific reference, but those laws do
indeed require "effects bargaining. "
It
is because the older Police law makes specific statutory reference
to
"effects"
that there is been very little litigation or dispute over the issue. In contrast, the newer
County Employees law has been clarified through dispute and litigation. Indeed,
MCGEO has had to file more Unfair Labor Practices Charges since their law was
enacted in 1986 than has the FOP under the PLRA enacted in 1982.
It
is in the spirit of resolving this issue here and now, rather than later, that we
present the following for Council review and consideration.
EFFECTSBARG~G
One of the bedrock concepts in American labor relations jurisprudence is "ef­
fects bargaining." Effects bargaining is basic to the practice of collective bargaining in
practically every jurisdiction. It is a necessary component of the exercise of "manage­
ment rights" both in the public and private sectors.
The National Labor Relations Board [NLRB] in its landmark decision
Ozark
Trailers, Inc.,
161 NLRB 561, 63 LRRM 1264, 1266 (1966) cited to earlier precedent
in defining this concept, and explained that even when an employer is undertaking a
managerial decision, such as the decision to completely shut down operations - perhaps
the most fundamental management right of all:
. an employer is still under the obligation to notify the union of its intentions so that
the union may
be
given an opportunity to bargain over the rights of the employees
.
whose employment status will
be
altered.by the managerial decision.
This duty cannot be neatly limited t6 a specified list of subject areas or
scenarios. As Hill and Sinicropi explain in their often-cited text
Management Rights,
(BNA Books, 1989) at p. 412:
The courts have not limited the scope of effects bargaining to a specific list of
subjects. All aspects related to that decision may
be
encompassed in the broad
scope of effects bargaining.
Indeed, as the NLRB
has
often recognized:
The effects are so inextricably interwoven with the decision itself that bargaining
limited to effects will not
be
meaningful if
it
must
be
carried on within a framework
of a [management] decision which cannot
be
revised. An interpretation of the
law
which carries the obligations to 'effects,' therefore, cannot well stop short of the
decision itself which directly affects 'tenns and conditions of employment.'
 PDF to HTML - Convert PDF files to HTML files
Honorable Derick Berlage
Bill 10-00
June 2, 2000
Page Three
Ozark Trailers, supra,
at p. 1269. This iron link between the exercise of any manage­
ment right and the duty to bargain how that exercise is to be effectuated is not set out in
the text of the Federal Labor Management Relations Act, 29 U. S.
C.
§
151
et seq.
(LMRA). The LMRA merely requires that private sector employers "meet at reason­
able times and c&a2661H"management
rights" and "effects bargaining"
arise inexorably from the process of defIning the frontier between what constitutes
"wages, hours, and other terms and conditions of employment," and what subjects lie
outside the duty to bargain .
. The propriety of the concept of "effects bargaining" was approved by the U. S.
Supreme Court in
First National Maintenance Corp. v.
NLRB,
452 U.S. 666 (1981).
There, the Court said:
[B]argaining over the effects of a [managerial] decision must be conducted in a
meaningful manner and at a meaningful time .... [The union] has some control over
the effects of the decision and indirectly may ensure that the decision itself is
deliberately considered.
452 U.S. at 682.
The twin concepts of "management tights" and "effects bargaining" have con­
tinued to be applied in public sector collective bargaining throughout the United States.
Pursuant to the Civil Service Reform Act of 1978, employees of the Federal Govern­
ment were granted collective bargaining rights. While the parameters of those rights
are somewhat different
than
for the private sector (e.g. Federal employees are not
permitted to strike), the basic concepts remain the same. As the U.S. Court of Appeals
for the District of Columbia observed in
Dept. of Defense
v.
FLRA,
659 F.2d 1140
(D.C. Cir. 1981),
cen.
deni~d,
455 U.S. 945 (1982):
Even with regard to reserved management rights. the Act authorizes collective
bargaining over the 'procedures whicl1 management officials of the agency will
observe in exercising [their] authority ... .'
Thus, "effects bargaining" is also described as the duty to bargain over the
procedures for implementing a managerial decision.
The same concepts have also been applied in Montgomery County collective
bargaining laws, whether or not the County statute specifIcally includes a detailed guide
to effects bargaining. The County Collective Bargaining Law,
§
33-101,
et seq.,
Mont. Co. Code, 1994, and the Fire and Rescue Collective Bargaining Law, § 33-147,
et seq.,
Mont. Co. Code, 1994, do not include the general reference to effects bargain­
ing found in the County's Police Labor Relations Act at § 33-80(a)(6). Nevertheless,
"effects" or "procedural implementation" bargaining have been determined to be a
necessary concomitant to the subjects of bargaining outlined in the County Collective
Bargaining Law at
§
33-107(a).
 PDF to HTML - Convert PDF files to HTML files
Honorable Derick Berlage
Bill 10-00
June 2,2000
Page Four
In
Montgomery County Government
v.
MCGEO-UFCVV Local 400,
Case 90-1.
the Montgomery County Labor Relations Administrator (LRA) determined that four
bargaining proposals by MCGEO regarding contractual procedural regulation (by the
use of seniority) of the County's implementation of the management rights
to
transfer,
promote,
fill
vacancies, and assign overtime are "legal" proposals under County law.
In reaching that decision. the LRA reviewed major precedents in state and local public
sector bargaining afflfIlling the concepts of effects bargaining. In that case, even the
County conceded some of the basic premises of effects bargaining. The LRA noted:
In any event, the County's position throughout has been that it is legal and appro­
priate to entertain and discuss 'seniority' proposals, and to agree to same, when it is
'post-decisional' i.e. after the County decides that services and operating efficien­
cies are not substantially impaired ....
The four proposals as written!o not violate the County's prerogatives. The County
concedes that the proposals fall within the general definition of 'conditions of
employment' under [the statute] ... and since seniority matters are of fundamental
concern to employees, the County violated the statute by failing to bargain.
This decision brings us full circle to the premise enunciated by the Supreme
Court in
First National Maintenance, supra:
"[The nnionJ has some control over the
[managerial] decision ....
If
As we have referenced, the Police Labor Relations Law includes at Section
33­
80(a)(7) the duty to bargain:
The effect on employees of the employer's exercise of rights enumerated in
subsection (b) hereof.
Section 80(b) lists management rights under the PLRA.
Whether or not such a provision
were tp be
included
in
any
collective bargain­
ing legislation covering police supervisors or other County employees not presently
.covered by a collective bargaining unit, the' concept of "effects bargaining" is so deeply
ingrained in American labor relations jurisprudence, that any statute directing collective
bargaining regarding any subjects traditionally included within the concept "wages,
hours, and other terms and conditions of employment" necessarily includes effects
bargaining.
During the 18 years of the parties' experience with the PLRA, there have been
few if any formal controversies regarding the scope of proper subjects of bargaining.
This excellent experience has been fostered by the detailed clarity of the bargaining
duty under the PLRA. Removal of the specific reference to effects bargaining from
any future law would simply raise the possibility that sergeants, through their union,
will have to clarify that such bargaining is required through litigation, such as occurred
shortly after the promulgation of the County Collective Bargaining Law in·
1996.
 PDF to HTML - Convert PDF files to HTML files
Honorable Derick Berlage
Bi1110-00
June 2,2000
Page Five
LAW SHOULD BE CONSISTENT
A problem, withexclusions of specific reference to "effects bargaining" is that
two groups of polIce employees will be bargaining under different statutes. This is akin
to a football game where one team plays under NFL rules and the other plays under·
Canadian Football League [CFL] rules. Clearly, confusion and disputes will result.
established legislative terms and understandings will be disputed and
a new law
WIll
need to be defmed through dispute resolution mechanisms and litigation.
This is not in the larger interest of the sound public policy articulated at
§
33-75.
The PLRA represents a balance of the interests between Management and the
Union. American labor law has evolved over scores of years as a result of the
struggles of employees to aChieve democracy in the workplace on the one hand, and
management to hold onto what it perceives as its "prerogatives."
It is out of respect for the manner in which the PLRA was drafted in response to
a Citizen Initiative that Lodge 35 has not sought to expand the scope or parameters of
the PLRA beyond the inclusion of sergeants under the same law. (We were honest and
open with the 1982 Council and Executive, as well as political candidates since that
time. that we intended to continue to push for inclusion of sergeants.) Unfortunately,
the Duncan Administration has exploited this legislation and the OLO study of the
police complaint system to attack an established law.
"EFFECTS BARGAINING" IS WIDELY MISUNDERSTOOD
"Effects bargaining has been blamed for all sorts of perceived evils unrelated
to the concept. Interestingly, the department issues internal directives regularly. Very
few of those directives involve bargaining. Those that do, generally address mandatory
bargaining, not effects. For instance, directives and policies on arrest procedures,
enforcement priorities, district boundaries, crime reporting, selective enforcement,
issuance of citations, jurisdiction, department organization, search and seizure,
prisoners and fugitives, community services, and public relations rarely result in
bargaining of any kind. And when they do, bargaining is limited to small and specific
portions that involve working conditions.
II
More~)Ver,
Part of the confusion has been the result of Contract Article 61
Directives and
Administrative Procedures.
That Article requires that "[n]egotiable matters pertaining
to administrative procedures, department directives, and rules referenced in this agree­
ment . . . are subject to addition, change, amendment, or modification, only after
specific notice is provided to the union with an opportunity to bargain and after the
parties reach agreement.
If
no agreement is reached, the addition, change, amendment,
or modification shall not be implemented." The Article further provides that
 PDF to HTML - Convert PDF files to HTML files
Honorable Derick Berlage
Bill 10-00
June 2,2000
Page Six
"[c]hanges to directives, rules and procedures not enumerated in th[e] agreement, or the
effects on employees of the employer's exercise of a management right as enumerated
in Article 42
§
A, which involve matters appropriate for collective bargaining will be
proposed by the County to the Union for bargaining. Thereafter, and before implemen­
tation, bargaining and agreement shall occur. Failing agreement, the dispute will be
resolved pursuant to the impasse procedures ... of Chapter 33,
§
33-Sl(b) of the
Montgomery County Code."
This Contract Article simply affords the County flexibility to seek change
without waiting for bargaining on a successor (or term) contract. An analogy to the
County's budget process might be appropriate.
In March of each year the Executive submits a recommended budget to Council.
Council spends considerable time analyzing and questioning the recommendation. By
law, a date is set for approval of the budget that becomes effective on July 1.
Should the Executive desire to amend or supplement the budget after July 1,
s/he must follow certain procedures and submit the request to Council. As you well
know, certain requests are barred until after January 1. Charter
§
307. Emergency
appropriations to meet specific circumstances can be made at any time. Charter
§
308.
In both cases, public notice is required. These charter provisions apply to all county
agencies, including public safety.
Council will deliberate and discuss these supplemental budget requests. Year
after year, we read of the Executive's expressed frustration with Council for doing its
job. Executives have accused Council of micro-managing, interfering. endangering
public safety, etc. The rhetoric goes on year after year, budget after budget. Such is
the nature of our democratic form of government.
Like the budget process, the term bargaining process takes place at certain
times. Contracts last for not less than one, nor more than three years. In November,
we commence the process.
If
no resolution is reached by January 20, impasse reached.
All issues must be resolved by February 1 and portions of the Agreement requiring
Council action must be submitted as part of the Executive's Recommended Budget. By
May 1, the Council must indicate its intent to accept or reject all or any portion of the
agreement.
If
any portion is rejected, the parties enter into a process for resolution.
The contract becomes effective on July 1.
Therefore, for purposes of our analogy, term bargaining is like the annual
budget process. Interim bargaining under Article 61 and "effects bargaining" is like
supplemental budget requests.
Both the budget and bargaining processes require deliberation and review by the
parties, neither interferes with the efficient and effective delivery of essential public
services. Both are subject to complaints by the Executive!
@
 PDF to HTML - Convert PDF files to HTML files
Honorable Derick Berlage
Bill 10-00
June 2,2000
Page Seven
.
In this regard, management is critical of Lodge 35 for its thorough analysis of
issues submitted for bargaining, saying this is time-consuming. Like legislatures and
good business in all segments of our society, all parties have a duty to be thorough.
We do not take our Obligations lightly.
Another recent management complaint has been the delay in bargaining "ef­
fects" and non-effects issues midterm in the contract. Both sides have been responsible
for delay in various matters. If this is a concern of either management or the union,
either is free to require the other to bargain through established procedures. e.g.
Charge of Prohibited Labor Practice.
.
.
.
'
.
Penultimately, .it must be restated that the Police Complaint Process study that
brought this issue to the forefront of attention is mostly unrelated to any collective
bargaining. The investigation of most complaints against police officers, and all com­
plaints alleging excessive use of force, is governed by the Law Enforcement Officers'
Bill of Rights. Article 27,
§
727,
et
seq.
of the Annotated Code of Maryland.
That law affords police officers certain procedural rights in investigations,
including the right to ten (10) days to obtain representation before being subjected to
questioning of the officer concerning his/her conduct. Hence, no matter how serious
the allegation, the officer has ten days after notification to make a statement, but
management frequently postpones asking for that statement, thereby delaying the
process. But, as stated, this is state law, not collective bargaining.
Management complains of this law and says, that because of "effects bargain­
ing"
it
can't engage in corrective action to prevent inappropriate conduct. Our response
is siinple: In the very few cases where this has been at issue, we demanded due pro­
cess for our members and management tried to deny that due process notwithstanding
the constitution and Personnel Regulations Section 3.2
Due Process.
Management can
submit a proposal to bargain, but hasn't. To say that "effects bargaining" is at the root
of all evil is disingenuous at best. (Even management touts the low number of
complaints relative to the amount of police ru:tivity.)
I further note that it
has
been those areas where the LEOBR or an unfettered
management right applies that have been the subject of most criticism. The Department
of Justice was falsely told by police management that FOP Lodge 35 delayed the disci­
plinary process and Lodge 35 provided proof that it did not. DoJ found many man­
agement, not FOP, deficiencies and the recently signed Agreement with DoJ preserved
all contract and PLRA rights while requiring changes in certain management (not FOP) .
practices.
In sum, this issue has been exploited and misunderstood. Most collective bar­
gaining involves mandatory subjects of bargaining, not "effects." "Effects bargaining"
exists even when a statute does not create it, for there is no bright line test to determine
if a matter is a mandatory subject of bargaining or an effect of the exercise of a
management right.
®
 PDF to HTML - Convert PDF files to HTML files
Honorable Derick Berlage
Bill 10-00
June 2,2000
Page Eight
Our law, unlike the other County bargaining laws, sets forth by statute what
others have had to define through litigation. Our job
as
police officers is a tough one.
The public is better served when we negotiate according to statute than when we litigate
over it.
Our goal is to avoid continuing controversy, not to create
it.
We therefore urge
Council to include sergeants
in
the bargaining unit under the law that has existed for 18
years.
We look forward to working with you, the MFP Committee, and
full
Council on
this most important legislation.
Sincerely.
Walter E. Bader
President
Enclosures (Reference material; MCGEO ULP Case
90-1)
cc: Mr. Andrews, Lead, MFP
Mrs. Dacek
Mr. Denis
Mr. Ewing
Mr. Leggett
Mrs. Praisner, Chair, MFP Committee
Mr. Silvennan
Mr. Subin, President
@
 PDF to HTML - Convert PDF files to HTML files
Question
#
1:
Please give examples of issues that could have been the subject of "effects
bargaining" .
Question #2:
What is a typical timeline for negotiation and impasse procedures?
Question
#3
What costs are associated with negotiations and impasse procedures?
Question
#4:
The "effects bargaining" provision only applies to the exercise of a management
right that has an effect on the members of the bargaining unit. Can you give us an
example of a management right that you exercised without bargaining with the FOP
because it did not have an effect on the members of the bargaining unit?
If
so, did
the FOP accept this determination?
If
not, how was the dispute resolved?
Question #5:
Can you compare the exercise of management rights as applied to MCGEO (within
MCPD) as compared to the FOP?
Question #6:
Can you give an example of where you exercised a management right to increase
effectiveness and efficiency of operations of the Department and the resulting
negotiations diminished your ability to hold officers accountable, implement
effective policy or provide efficient resources to the public?
Question #7:
This is a committee that recognizes the importance of collective bargaining.
If
effects' bargaining is eliminated, won't important subjects of bargaining be
impacted?
1
@J
 PDF to HTML - Convert PDF files to HTML files
Answers:
Question
Every statutory employer right as defined by statute 33-80 (b) is
subject to effects bargaining and is a mandatory subject of bargaining. Some
examples are:
-
Packet Writer
Mobil AFIS
-
AVL
- E-citation
-Holsters
-RWe
sights
-
-
-
-
-
SOP's
Directives
Trainer/Trainee relationships
Mandatory use of email
Proficiency advancements and time in grade
Uniforms at In-Service training
PPY
reassignment
Evidence Technician work hours
Me
Time!Telestaff
Question #2:
Typically,
a
minor matter
..,vill
take between two weeks
and 90
days to resolve
without
any impasse being declared
by
either party.
i\
more significant matter (as determined
by
either party) can take up to two years or
more to bargain.
*
lfimpasse is declared an arbitrator must be selected and scheduled. This
typically
takes
at
least two months.
*
A mediation/arbitration proceeding can take between one and three days.
*
The decision may not be rendered for \-\leeks
t()llmving
the proceedil1g.
Question
#3
During bargaining a negotiations team from each party is designated and will vary ill size
based on the complexity of the issue. The employers team of representatives may also
include OHH. employees and a member of the County Attorney's office The range of
representatives
varies
between
two and tive for
normal negotiations.
Ail FOP members
attending these bargaining sessions are granted administrati ve leave
(if
not tern}
barg,'lining this should be taken from the FOP leave bank).
Arbitrator costs vary and range between $425 -
$
1.500 per day. This includes the time
spent drall their opinion.
 PDF to HTML - Convert PDF files to HTML files
Question #4:
• November 2010 Department recognized a personnel shortage of officers in the 3
rd
District due to various factors including officers deployed on military leave, on
light duty or on administrative leave.
• Needed to supplement staffing levels to maintain service to the community and
reduce crime.
• November 29 - memo sent out requesting volunteer officers to be temporarily
reassigned to the 3
rd
District.
• No notice was given to the FOP because this was a voluntary program.
.~.
FOP demanded to bargain this matter on Dec 13
th •
• Due to the Department's need to address the shortage, planning continued with
the officers who volunteered to be transferred to the 3
r
District. FOP objected to
this action in communication with us on January 14,2011.
• Communications between the Department and FOP continued while officers
began their voluntary redeployments to the 3
rd
District starting January 30.
• Agreement with FOP was reached on March 4, 2011. By this time, several of the
originally transferred officers had completed their assignment and returned to
their previous duty assignment.
• MCPD was at risk of being charged with a PPC if no agreement was reached.
Question #5:
MCGEO Process: There are several units within MCPD that are made up of primarily
MCGEO members, such as ASD, ECC, Crime Lab and Security. When ECC, a division
comprised of primarily MCGEO employees, needs to implement an Operational Change,
it is done so immediately and a copy of the change is placed in the MCGEO mailbox for
review. lfthe change is a mandatory subject of bargaining, they discuss it at LMRC and
then notice the Union of the proposed change. For example, ,Management may send a
copy ofthe SOP with the proposed revision(s) to MCGEO and MCGEO has 30 days to
respond. They can either accept the changes or inform the Department of clarifications
or issues. Once issues are resolved the Department has to send Notice ofImplementation
to MCGEO as long as the Union is satisfied with the change, it takes effect. Generally,
this procedure takes approximately 3-4 weeks to complete.
Examples:
• 2010 Management exercised its management right to change the operating hours
of the Chemistry Lab. The Union was noticed, provided input and the hours were
changed.
2
 PDF to HTML - Convert PDF files to HTML files
• 2008 Management exercised its right to change the work schedules and hours of
ASD employees. The Union was noticed, provided input and the hours were
changed.
FOP Process:
In
order to exercise a management right, the department's belief is any
bargaining deemed necessary would fall under "Effects Bargaining". The department
needs to notify the FOP and allow them an opportunity to accept
it
or demand to bargain.
The bargaining process can last days or years.
Examples
2011 the Department exercised a restructuring due to budgetary lack of funds.
The FOP was notified and quickly agreed to the changes in one day.
Mobile AFIS devices were bargained beginning in October 2007 and an
agreement was reached in March 2008.
The Department uses SOP's (Standard Operating Procedures) as a management
right to establish procedures not covered by its Rules and Regulations under the
Department Directive system. The Department entered into bargaining of the 1
st
District's SOP with the FOP following a Prohibited Practice Charge filed with the
Permanent umpire in October 2007 and reached agreement on that one SOP in
September 2009.
The Departments Directive System
Question
#6:
PacketWriter
• The Department sought to implement PacketWriter in an effort to improve its
efficiency and effectiveness in operations by converting the departments report
writing system to an electronic version instead of using paper report forms and
mandating that officers use only PacketWriter. The FOP made a demand to
bargain PacketWriter in February 2006.
An
agreement was not reached to
mandate PacketWriter use until May 2009. Prior to the May 2009 date, officers
were allowed to write reports in either the electronic format or using the old paper
forms. This created record keeping challenges and additional costs to the Police
Department.
• The Department sought to implement an Automatic Vehicle Locater system
which allows ECC to identify the location of police vehicles equipped with
computers. The negotiations resulted in an agreement where data from
this system will not be used in any disciplinary action or internal investigation or
administrative hearing board proceeding concerning any FOP member.
Email
• The mandatory use of email has been sought by the Department in the past.
Negotiations with the FOP resulted in an agreement on email use. However, no
agreement for the mandatory use of email has ever been reached and its use
3
@
 PDF to HTML - Convert PDF files to HTML files
remains voluntary for its members. The Department is still required to provide
printed communications with its officers since FOP members are not required to
read or maintain an email account with the County.
Question #7:
No, because the County law and the collective bargaining agreement with the FOP
requires bargaining over salary, wages, pension benefits, retirement, hours and working
conditions, grievance process and health and safety issues. Many aspects of "effects
bargaining" are covered under the collective bargaining agreement already.
• directives
• transfers
• promotions
• discipline
• hours and working conditions (scheduling)
• evaluating employees
In addition, the Department and FOP have established joint committees to work on
solutions of issues of mutual concern that arise. Examples include
Health and Safety Committee
LMRC
Training Committee
Awards Committee
Collision Review Committee
4
 PDF to HTML - Convert PDF files to HTML files
July 12,2011
President Ervin:
Vice President Berliner:
Members of the Council and Staff:
My name is Vernon H. Ricks, Jr. I served as co-chair of the Organizational
Reform Commission appointed by the Council and Executive, which submitted a
report to you on February 1,2011.
In our report, recommendation # 21 recommended amending §33-80(a)(7) to make
the scope of bargaining consistent with the scope of bargaining in the collective
bargaining laws for fire and general county employees.
The Erosion of Management Rights
The Police Collective Bargaining law establishes the scope of collective bargaining
in County Code §33-80. Similar to the collective bargaining laws for Fire and
general County employees, the Police Collective Bargaining law requires the
Executive to bargain over wages, benefits, and working conditions. Section 33­
80(b) also establishes a list of "Employer rights" that the Executive does not need
to bargain. However, unlike the collective bargaining laws for Fire and General
County Employees, §33-80(a)(7) requires the Executive to bargain over the "effect
on employees of the employer's exercise of rights listed in subsection (b)." This
provision is generally referred to as "effects bargaining." For example, §33­
80(b)(3) grants the Executive the employer's right to "determine the services to be
rendered and the operations to be performed." However, under effects bargaining
the Executive would have to bargain with the union over the effect on employees
of the Executive's decision to modifY the services performed. In practice, "effects
bargaining" has become the exception that makes most management decisions
subject to bargaining.
"Effects bargaining" has hampered the ability ofthe Police Department to issue
directives to govern how police officers must operate.
 PDF to HTML - Convert PDF files to HTML files
Page 2
As you know, the County's collective bargaining laws outline a list of "employer
rights," such as the direction and supervision of employees, types of services
provided by the department, hiring practices, budget, position classification, etc.
These employer rights are not subject to bargaining, except under the Police Labor
Relations Law. For Police only, the Executive must bargain
any effect on
employees
that the exercise of employer rights may have.
This means that the Directors of every County department other than Police may
exercise their employer rights to manage their department and employees without
having to take such issues to bargaining. The Police Department, for all practical
purposes, ends up bargaining almost every management decision made. One
primary concern is the inherent delay caused by the bargaining process. At
minimum, anything taken to bargaining takes one or two months to resolve. Many
issues take years. Some are never resolved, and those management rights cannot
be implemented since the Department and union do not agree on how it should be
done. While a delay may not be significant when the issue is something like new
police uniforms, it can be significant if it involves changing police assignments to
meet identified public safety needs or the introduction of new technology tools that
could protect both the police officers and the citizenry at large.
Effects bargaining may also lead to increased costs in some situations. If the
Department wishes to exercise a management right that only impacts some
employees and not others, the union may insist that all employees are included.
This could lead to increases in such things as tuition assistance or issuing
additional equipment.
In some instances, effects bargaining may result in treating employees differently.
The Police Department has hundreds of civilian employees who are represented by
MCGEO, not FOP. If an MCGEO employee and FOP employee are working
side-by-side, performing essentially the same function, they may be treated
differently by management - subject to different rules.
Eliminating effects bargaining from the Police Labor Relations Law will not erode
the union's ability to bargain mandatory subjects of bargaining, such as wages,
benefits, working conditions.
In closing the ORC supports the enactment of Bill 18-11
 PDF to HTML - Convert PDF files to HTML files
Montgomery COtlnty Career
Fire Fighters Ass'n., Inc.
L.OCAL
1664
!
Testimony by John J. Sparks
~S
President, IAFF Local 1664
Public Hearing - Bills 18-11, 19-11
&
20-11
July 12, 2011
I am John Sparks, President of the Montgomery County Career Fire Fighters Association, IAFF
Loca11664. I am here today to speak in opposition to the three bills that, if adopted, would
adversely impact collective bargaining for County employees, while at the same time produce
little or no savings for County Government. vVhile the three bills address different aspects of the
collective bargaining process, and Bill 18-11 does not directly impact collective bargaining for
fire fighters and paramedics, all three bills suffer from a common set of deficiencies.
First, we believe that the Organizational Reform Commission, whose recommendations form the
basis of these bills, overstepped its bounds. The original charge given to the ORC did not
include consideration of changes to the County's collective bargaining laws; and for good
reason.
It
is our understanding that most members of the ORC had little or no experience in
matters pertaining to labor relations and collective bargaining, and the results of their work that
are incorporated in these bills demonstrate this lack of experience. Most of the recommended
changes to the collective bargaining process contained in these bills are not well thought out and
contain serious flaws.
F or instance, Bill 19-11, if adopted, would move the date for completing the term bargaining and
impasse resolution procedures up two weeks. Yet at the same time, it doesn't move up the start
of term bargaining by a similar period of time. More importantly, experience has shown that the
County is unable to provide complete and meaningful responses to the Unions' request for
financial data until mid-December and perhaps even into January in any given fiscal year. Thus,
substantive bargaining over economic proposals cannot occur until that point in time, which
would be close to or beyond the early January date that the bill would establish as the point in
time that statutory impasse occurs.
Second, Bill 19-11 would require that the Unions' initial proposals on economic items and the
County Executive's counter-proposals on those items be made available for public review.
This proposed amendment would add no value at all to the collective bargaining process, and in
fact, could actually harm the process. \Ve agree with the observation of ORC Commissioner
Susan Heltemes that the integrity of the collective bargaining process relies on all persons
involved in the negotiations to maintain confidentiality until a final agreement is reached; and
that if initial proposals were made public, outside pressures would more often than not lead to
breakdowns and stalemates in the bargaining process.
Further, to think that requiring proposals to be made public will influence the parties to moderate
initial offers is simply nalve thiIh\ing. In addition, anyone who has participated in
932 Hungertord Drive, Suite 33A, Rockville, MD 20850-1713 • Teephone: (301) 762-6611 • FAX: (301) 762-7390 • Website: www.iafflocaI1664.com
"'~32
 PDF to HTML - Convert PDF files to HTML files
collective bargaining knows full well that the final outcome in collective bargaining usually
bears little resemblance to the initial proposals. This proposed law change would neither
generate any savings for the County, nor would it create any improvements to the collective
bargaining process.
\Ve do, however, agree with the proposed amendment in Bill 19-11 that would require the
County Executive to submit to the Council by March 15 any term of a labor contract which
requires an appropriation of funds or change to County law. Such notification should occur at
the same time the County Executive submits his proposed operating budget, not two weeks later.
Turning to
Bill
20-11, we note, with objection, that the impasse resolution procedure would be
changed to prohibit the same individual ,from serving as both the mediator and impasse
arbitrator, as is the case now.
In
making this recommendation, the ORC commented in its report
that the free flow of ideas during mediation is diminished when the mediator also serves as the
arbitrator. Speaking from years of experience, I can tell you that just the opposite is true.
Having the same individual appointed as both mediator and arbitrator facilitates rather than
inhibits the discussion that occurs during mediation, and creates a greater chance of reaching a
full or partial agreement prior to arbitration.
Also, there is no doubt that requiring different individuals to serve as mediator and neutral
arbitrator would significantly increase the time needed to complete the impasse resolution
process. Under the current system, the impasse neutral gains valuable insight as to the purpose,
intent and practical application of the parties' contract proposals during mediation. Significant
time is saved in a subsequent arbitration proceeding by the impasse neutral having previously
gained this understanding. Time that is already at a premium would have to be spent educating a
different person serving as the arbitrator as to the context and parameters of the parties'
proposals.
Further, the provision of Bill 20-11 that would create a tripartite arbitration board, with the
Union and the Employer each appointing a partisan representative, can be summed up best as
being nonsensical.
In
every case, without exception, each partisan member of the arbitration
board will vote to select the Last Best Final Offer of the party that appointed him or her. Any
information that the neutral arbitrator needs about the Last Best Final Offers is provided during
the arbitration hearing. \Ve view this tripartite board proposal as being mere "window dressing"
rather than serving any useful purpose.
In addition, the five-member impasse panel that Bill 20-11 would create for the purpose of
selecting a neutral arbitrator in the absence of a joint selection by the parties is actually
counterproductive. The language of the bill restricts panel eligibility to individuals who are
County residents. All affected parties, including County taxpayers, are best served by having
arbitrators who have considerable experience in interest arbitration deciding cases of such critical
importance. There is simply not a large (i.e., adequate) pool of candidates with the desired
qualifications living in Montgomery County. Moreover, it is wrong to think that arbitrators who
live in the County are, for that reason, best qualified to understand and resolve issues involving
the allocation of County funds.
 PDF to HTML - Convert PDF files to HTML files
Finally, Bill 20-11 would amend the County collective bargaining laws by changing the criteria
that guide an arbitrator in selecting one of the two competing Last Best Final Offers. More
specifically, the bill would add criteria that the Council considered and rejected just six or seven
months ago. The criteria that were not adopted were rejected for good reason. They would
unfairly tip the impasse resolution scale far in the direction of the County Executive.
Nothing has occurred in the last few months from which to conclude that those rejected criteria
should now be adopted. 'While interest arbitrators selected the Last Best Final Offer of the
employee representative in all three cases occurring this past winter, it was not because the
existing criteria are deficient or slanted in a way to produce results that are favorable to the
employees; it was because,
as the Council quickly recognized,
the Last Best Final Offer that the
County Executive submitted in each case contained
extreme
proposals that went far beyond what
was necessary to address the County's fiscal problems. The existing criteria in the collective
bargaining laws have been written to achieve the desired end result: the selection of the Last Best
Final Offer that contains the most fair and balanced resolution to a collective bargaining impasse.
Moreover, the Council still serves as the final arbiter on whether the economic provisions of a
collective bargaining agreement are put into effect.
\Ve urge the Council to reject the objectionable elements ofthe bills that have been highlighted
herein.
@
 PDF to HTML - Convert PDF files to HTML files
Testimony before County Council
on Bill 18-11, Police Labor Relations - Duty to Bargain
July
12,
2011
Thank you Madam President and members of the Council for this opportunity to testify
in support of Bill 18-11, Police Labor Relations - Duty to Bargain. I am Joan Fid ler,
President of the Montgomery County Taxpayers League. I am here today to commend
you for aligning yourself with consistency, fairness and common sense none of which
appear to be the underpinnings of effects bargaining.
Bill 18-11 injects reality and balance into the Police Collective Bargaining law. As it
stands today, this law requires the Executive to bargain over the "effect on employees
of the employer's exercise of rights". Thus before management may proceed to make a
change in how employees are transferred, scheduled or reassigned, the
effect
of the
changes on employees may require management to bargain with the union. So does
this create restrictions in management's ability to implement its decisions? Let me
count the ways:
o
Past practice has shown that there have been delays in implementation of
decisions ranging from 2 months to 2 years. A recent ORC Report stated that
the Police Department had to bargain with the union over a directive to
implement a new computerized police report writing system. Effects bargaining
was invoked and implementation was delayed. In fact, states the Report, the
police union has recently delayed the implementation of all directives by refusing
to respond to them. Is this the inefficiency we need in these difficult budget
times?
Let us look at costs. If the Police Department wants to distribute equipment to
some employees but not to others, effects bargaining may be triggered. If the
Police Department and the union do not agree on which employees should
receive the equipment, the solution is to issue none of it - feckless, or issue
equipment to all- wasteful.
o
Effects bargaining undermines the ability of the Police Department to manage. At the
same time it expands the scope of collective bargaining for the police union. Such an
expansive scope is not included in the collective bargaining of other county unions. Nor
is it included in the collective bargaining of any other police union in the state of
Maryland. Let us be consistent and let us be fair.
If collective bargaining were poetry, effects bargaining would be poetic licence. It is
time to scrap effects bargaining. The Taxpayers League urges you to pass this bill.
Thank you.
-
Joan Fidler
 PDF to HTML - Convert PDF files to HTML files
Montgomery County Lodge 35, Inc.
18512 Office Park Drive
Montgomery Village, MD 20886
Phone: (301) 948-4286
Fax: (301) 590-0317
Statement of Fraternal Order of Police,
Montgomery County Lodge 35
Tuesday, July 12, 2011
We are here again because the County clearly wants the priority of County police officers to be
fighting for their rights rather than providing services to the public. For shame, because despite
years of VOLUNTARY concessions by police officers made during the County's tight fiscal
situation, and as the County budget increases, we have to be here to spend our time defending a
process that has worked for nearly three decades. It worked up until the day politicians found
process under law inconvenient to their purpose.
The County Council has several bills before it. These bills arise from a very questionable
set of recommendations
in
the January 2011 report of the Organizational Review Commission.
The most questionable is based on a recommendation on so called "effects bargaining."
The capital budget is in the billions of dollars, yet the commission had some special
interest in the collective bargaining process which has worked well for over 28 years. The
commission showed no interest in either the very high salaries of non-represented, non-union
employees or the means which their salaries and benefits are established. Clearly the
commission was carrying water for political interests. This recommendation is outside the scope
of the commission's charge and should be dismissed.
Employee contract negotiations are no different than any other negotiations the County
engages in for services. The County employs both represented and non-represented employees.
It
seems odd that the Commission focused on employee contracts for a minority of county­
compensated employees. There are 15,000 county employees and 22,000 MCPS employees.
There are but 1200 police officers.
The minutes of the commission do not show any detailed discussion of what is called
"effects bargaining". Apparently, they did some of their work in secret while maintaining a
misperception of openness and transparency. Their work seems more political, and devised in
secret without scrutiny or accountability.
In
its final report, the commission makes conclusions
based on either secret conversations that are not documented or were documented and are now
withheld from public view. We have filed a complaint with the police department to have them
investigate. This is a matter of management's integrity and accountability. [Attached]
Their conclusions are based upon a false premise. Either the commission made up what
it asserts to be facts, or someone gave false and misleading information. [See PIA records
@
 PDF to HTML - Convert PDF files to HTML files
FOP Statement
July 12,2011
Page 2 of 3
request and response, attached] In any event, we met with the commission and were never
afforded any opportunity to respond to any allegations or assertions concerning "effects" that
were ultimately presented in the final report.
Since there are only two parties to "effects bargaining", it is patently unfair that the
commission heard from only one party and never afforded FOP Lodge 35 any opportunity to
respond. The commission called its credibility into question through this one-sided
approach. Also, clearly, as noted by one commission member, effects bargaining was not within
the charge of the commission. For whatever reason, the co-chairs of the commission and a
majority of that commission allowed it to be used for political purposes with little or no
consideration to fairness, balance, perspective or veracity. We have responded to portions of the
commission's report. [Attached]
"Effects bargaining" comes out of a case that was decided by the United States Supreme
Court.
It
is a complex topic, rarely understood by its critics. Effects bargaining has never had
any adverse impact upon our ability to respond to calls for service or to protect the public.
Indeed, we estimate that about 95% of the police department's business is not subject to
bargaining and we have no interest in requiring such bargaining. Penultimately, under our law,
issues subject to "effects bargaining" are subject to an expedited resolution process. In 2004 we
agreed to a law change that sets a very short period to go to impasse and resolve effects matters.
Management has rarely, if ever used that process and has no right to complain.
Some, notably Councilmember Phil Andrews, have consistently distorted the facts and
been less than candid about effects bargaining.
Mr.
Andrews uses the in-car video program as an
example that he claims makes his point. Assuming,
arguendo,
that in-car video involves effects
bargaining, the fact is that the county proposed a pilot program. The County began bargaining
cameras, and bought them. They were installed in vehicles and operating. Several legal issues
arose during discussions as several cameras were field tested. Our chief concern was the wiretap
laws and public and officer privacy rights.
The County, not FOP Lodge 35, sought to discontinue discussions. Then Chief Charles
Moose contacted us and asked to call off negotiations because the County wanted to return the
cameras and use the money for something else. In any bargaining, once a party abandons or
withdraws its proposal, the proposal is off the table. Thereafter, we went through several rounds
ofterm negotiations and the County never raised the subject, nor did they pursue it
in
any other
manner until very late in term bargaining in December 2007. The issue was resolved and an
agreement signed in 2008. We have testified under oath to the history ofthis subject. Mr.
Andrews' uninformed statements have not been under oath.
We have little interest in most operational policies, such as processing prisoners, opening
facilities, determining functions like school resource officers, determining enforcement priorities
and the like. To our knowledge we have only been to impasse on one issue, and that was
successfully mediated prior to a hearing. Other issues that have successfully bargained and
agreements reached include technology changes affecting the way work is done, increasing the
 PDF to HTML - Convert PDF files to HTML files
FOP Statement
July 12, 2011
Page 3 of 3
number of supervisors on the midnight shift, and reducing the number of master police officers.
There are others.
It
is far more likely that inept management and ineffectual leadership hinder police
operations. We meet with police management quarterly in a labor relations meeting, we resolve
issues in the workplace daily and we have solicited regularly for any outstanding items the
County wishes to discuss. [Attached] In fact, most issues arising from operational changes are
resolved without controversy. But the issue must be brought to our attention. If there is a
problem with police officers checking email, we were not made aware of it until today's
newspaper was delivered to our office.
Again, contract negotiation with employees is no different than contract negotiation with
any other service provider. Public access to proposals during bargaining harms the ability to
openly discuss all options. The County does not make public negotiations with Live Nation,
Costco, Westfield or other corporations with which it deals. Additionally, the premise that the
public has no input in the collective bargaining process is false. The public is at the table. We
serve and live in the County.
The commission fails to show that the fair and level playing field established under the
Police Labor Relations Article for impasse arbitration is in any way deficient.
In
recommending
a change to the impasse procedure the commission fails to cite one arbitration decision that was
unsound. The only fact cited is the number of arbitrations and who prevailed. This is analogous
to determining that the rules ofbaseball must be changed based on the number of time the New
York Yankees make it to the World Series. No one has identified any deficiency in the impasse
arbitration process other than the FOP has been found to be more reasonable than the County
more often than not. We are not surprised by that statistic.
The police officers in Montgomery County want to return to work. Instead, we are called
here to address baseless attacks on our rights under law a process that has kept police officers
doing what they should be doing: protecting and addressing the public safety concerns of the
community.
 PDF to HTML - Convert PDF files to HTML files
Lali,'
Office
of
~IARTHA
L.
H.Ai'iDl.\'L-\J.~,
P.C.
17604 Parlcridge Drive!
Gaithersburg,
M.D
20878
phone/fax: (301) 990-6539
RECEIVED
June 2, 2011
omas Manger
ctor
tgoxnery County Department of Poike
MONTGOMERY COUNTY FOP
LODGE
35
LOG#_ _ __
fl..h'.
Manger:
I am requesting an investigation into untruth.ful statements, misconduct
and
epresentations made in an official capacity
to
the Montgomt.'t'}'
COWlty
Organizational
iew Commission
(,'ORC")
by
representati....es of the Montgomery County Department of
ice. This is a grave and serious matter.
The
Final Report the ORC
W33
issued
on
J
ar\';J.llry
31, 2011. The report
states
that
gaining delayed
implementation
of a new computerized police report
'\1{nting
system. The
It
also
specifically !')tates that FOP Lodge 35 "delayed tbe
implementation
of all directives
by
ing to respond to them." These
verifiable
statements of
fuel;
are
untrue.
o
C
h
st
e
Representatives of
th-:
t\lontgom.ery Count) Department of Poiice testified before the
C Since the only informatlclfl
avaHa,le
to the
ORC
regarding effects bargaining between :he
unty's police
depanment
an<.i
the FOP must
ha'le originated
from
representatives
of
MCPD,
1
'e reason to believe the stat:;;ments in the ORC final report' are based upon
tlntrut.1ful
tements made
by
department representa.6'es. These misrepresentations are outrageous and an
egious breech of
public
trust and merit a
thf)rough investigation.
Please infonn me of the out.:ome of your invest; gation.
{fyou need additiofl21 information, please contect me.
Vcry truly
,/1
YOUIS,
, lV
('~c_,_f..r:.e..., "~<
l,.J,.
I
,~
!:::.
I
/
L
C.o"'7.
I
"
d
.tXCL.~
Marth.a
L.
Handrnan
 PDF to HTML - Convert PDF files to HTML files
PI
I' \
l~
I \ I
i '\
I \) I
1'1
>I
I( I
I
\
L (
I'
,r
I
~
.
~
June 15,2011
Martha
L.
Handman, Attorney at Law
17604 Parkridge Drive
Gaithersburg, Maryland 20878
Dear Ms. Handman:
Thank you for your letter identifying possible untruthful statements by a member of this
department. The Organizational Reform Commission's report does state:
The FOP has recently
delayed the implementation olall directives by refusing to respond to them.
This statement was
not reflected within a quotation nor was it attributed to anyone. The basis for our meeting with
the ORC was solely to discuss the possible reorganization of the M-NCCPC Park Police and the
Montgomery County Police Department. I did not, nor did any member of my staff, discuss FOP
Lodge 35 or any issues regarding directives during our testimony with the ORe.
If a comment were made to the ORC by any member of this Department in respect to
FOP Lodge 35, it was not made during any meeting with the ORC and my staff. To be clear,
FOP Lodge 35 has, to date, never failed to respond to any directive sent to them for review.
Again, thanks for bringing this matter to my attention. I look forward to working with
FOP Lodge 35 on issues related to keeping our ofticers and community safe .
JT:vt.mam
I
.
OfficI' 01 IlH' ( hil" ..
I Police
,
j
.
 PDF to HTML - Convert PDF files to HTML files
Law Oificl! of
MARTHA
L.
HA:'IiDMAl',
P.c.
17604 Parkridge Drive. Gaithersburg. MD 20g7X
phone. fax: (301) 990-6539
March
2, 20 II
C~s
dian of Records
~o
~I
FACSIMILE
&
U.S. MAIL
I
gomery County Council
IpO
aryland Avenue
~oc
ille,
MD
20850
Sir or Madame:
It
is my understanding that the Montgomery Council maintains the records of the
izational Reform Commission ("ORC").
This is a request, on behalf of my client, Fraternal Order of Police, Montgomery County
ge 35, Inc. ("FOP 35"). pursuant to the Maryland Public Information Act ("PIA") as
~
nded, Annotated Code of Maryland. State Government Article §
§
10-611
et seq.
In this
~
city, I wish to inspect. and copy if! believe it necessary, all the following records in the
fU
ody and control of the Montgomery County Council:
!
all records relating to any communication regarding collective bargaining or FOP
35 between ORC, its members or staff and Montgomery County Council staff,
Montgomery County executive branch personnel, other public officials or
organizations, or private individuals or organizations. For purposes of this
request "records" includes but is not limited to email, correspondence, recordings,
transcripts, documents provided to or reviewed by ORC members or staff, notes
of individual ORC members or staff, and notes of conversations and ORC
proceedings including but not limited to records of all meetings of ORC "work
groups."
to
I
If all or any part of this request is denied, please provide me with a written statement of
grounds for the denial citing the law or regulation under which you believe you may deny
a ess. I also request that you inform me of the available remedies for review of the denial.
If you determine that some portions of the requested records are exempt from disclosure, I
II expect, as the PIA provides in Section
J0-6
I 4(b)(3
)(iii),
that you provide me v.ith "any
onably severable portion" of the records sought.
 PDF to HTML - Convert PDF files to HTML files
I
expect
all
of the records
I
am seeking to be preserved and that any scheduled
ction be held in abeyance pending final resolution of any issues regarding your compliance
this request for records.
I
also anticipate that I will want copies of some or all of the records sought Therefore,
e advise me as to the cost, if any, for obtaining a copy of the records described above.
Please also send me a copy of your fee schedule for obtaining copies of records and a
CPP ,
of any rules or regulations you have which implement the Public Information Act.
I
!
'
l
I
If you are not the custodian of the records requested in this letter, please inform me ofthe
:e of the custodian and the location or possible location of these records, if known. Section
0- 14(3)
of the PIA requires you to provide me with this information within ten working days
ft
you receive this letter.
.
I
look forward to receiving the disclosable records promptly and, in any event, to a
J,
e sion about all the requested records within thirty days. Please be advised that my client is
pre ared to pursue available remedies should you fail to respond to this request within the
tory time limits.
If you have any questions regarding this request, please telephone me at the above
ber.
Very
truly
yours,
;/i
rYlcc
Martha L Handman
President Zifcak
 PDF to HTML - Convert PDF files to HTML files
MONTGOMERY COUNTY COUNCIL
ROCKViLLE, MARYLAND
March 30.20 II
M rtha
L.
Handman
I 04 Parkridge Drive
G ithersburg.!YiD 20878
R : MPIA Request dated Murch 2.2011
D
af
Ms. Handman:
C
re
o
w
We received your March
2.
2011 letter on behalf of the FOP requesting records under the
ryland Public Information Act (Md. Code. State Gov't (SG)
§§
10-61 I to 10-628 (MPIA».
uncil staff has collected those records in our custody that are responsive to your specific
uests. It is my understanding that the FOP has already been given copies of the minutes for all
the Organizational Reform Commission (ORC) meetings. You may inspect all of the records
have compiled. with the following exceptions:
I.
54 email messages between Council staff and the Organizational Reform
Commission (ORC) Commissioners providing draft reports and comments on
draft reports. These messages are dated between October 27. 2010 and Januar)
15,2011.
I email message between the County Attorney's Office and Council staff dated
November 2. 2010 concerning collective bargaining issues.
Council stalT notes from meetings of the ORC Work Group 3 meetings and the
ORe meetings.
9 drall Work Group 3 RepOlts.
2.
3.
4.
The above documents are not subject to disclosure under the MPIA because they are pre­
d 'isional documents which are protected by legislative and executive privilege. or attorney­
cI
ent pri vilege. as part of the "privileged or confidential by law" exception under SG
§
10-615( I )
a d because. under the inter- and intra-agency memoranda exemption in SG § I0-618(b).
d' closing these documents would be contrary to the public interest.
Under SG
~
10-618. a cllstodian may deny the right of inspection to certain records
i
r
d 'closure would be contrary to the "public interest." The Attorney General's Public Information
t Manual noted:
ST
LLA
S
WE:RNER COUNCIL OFF4CE BJILDING •
100 MARYLAND A ....· ENUE
..
ROCKVI:"':.,tc
MARYt.AND 2.0850
240;777-7900
• TTY :240;777·7914 • FAX 240;777·7989
WWW MON1GOMERVCC)UNTYMO,GOV
 PDF to HTML - Convert PDF files to HTML files
The above documents are not subject to disclosure under the MPIA because they are pre­
de isional documents which are protected by legislative and executive privilege, or attorney­
eli nt privilege, as part of the "privileged or confidential by law" exception under SG
§
10-615( I)
an because, under the inter- and intra-agency memoranda exemption in SG
§
10-618(b},
di losing these documents would be contrary to the public interest.
Under SG §10-618, a custodian may deny the right of inspection to certain records if
losure would be contrary to thc "public interest." The Attorney General"s Public Information
Manual noted:
SG §10-618(b) allows a cllstodian to deny inspection of "any part of an
interagency or intra-agency letter or memorandum that would not be available by
law to a private party in litigation with the unit." This exemption "to some extent
reflects that part of the executive privilege doctrine cncompassing letters,
memoranda, or similar internal government documents containing confidential
opinions, deliberations, advice or recommendations from one governmental
employee or official to another for the purpose of assisting the latter official in the
decision-making function."
Office o.fthe Governor v. Washington Post Company,
360 Md. 520, 55 L 759 A. 2d 249 (2000).
See also
66
Opinions ofthe Allorney
General
98 (1981) (executive agency budget recommendations requested by and
submitted to the Governor in confidence are subject to executive privilege). This
privilege arose from the common Jaw, the rules of evidence, and the discovery
rules for civil proceedings.
Stromberg A.felal Works, Inc. v, University of
Maryland,
382 Md. 151, 163,854 A.2d 1220 (2004).
This exception is very close in wording to the FOIA exemption in 5 U,S.C.
§552(b)(5), and the case law developed under that exemption is persuasive in
interpreting SG
§
I 0-618(b).
St/'omherg
at 382 Md. 163-64; 58
Opinions of the
Attorney General
53 (1973). The FOJA exemption is "intended to preserve the
process of agency decision-making from the natural muting of free and frank
discussion which would occur if each voice of opinion and recommendation could
be heard and questioned by the world outside the agency." 1 O'Reilly,
Federal
In/ormation Disclosure
§
15.01 Od ed. 2000);
see also Stromberg
382 Md. at
164.'
In this case, the public interest in protecting the confidentiality of internal deliberations
ing the legislative process outweighs any public interest in the disclosure of these documents.
e consequences of disclosing these documents are serious and negative. Disclosure of these
uments would inhibit the free communication of advice and ideas and the "creative debate
discussion" of potential alternative approaches among legislators, their staffs, and those
ividuals that legislators have called upon to assist them with their decision-making. While the
p lic and affected individuals may be curiolls about the internal workings between members of
Ie islative bodies. that curiosity cannot outweigh the chilling effect that disclosure would
in vitably entail.
-+-~
di
A
..
~~-.----
rvland Public Information Act Manual
r
II th ed.. October 2008} aI38-39.
.
.
2
@
 PDF to HTML - Convert PDF files to HTML files
SG
§
I 0-623 specifies the remedies for a person who believes that he or she has been
un awfully denied inspection
of
a public record. You should consult
§
10-623
if you believe you
ha e been unlawfully denied inspection of a public record.
To inspect the records that are available to you under the Act. please call Karen Pecoraro
at
240) 777-7814
to arrange for a mutually convenient time. You may request copies of these
do uments at that time. The Council charges a standard fee of$O.1
0
per page for each copy.
Sincerely,
Robert
H.
Drummer
Senior Legislative Attorney
240-777-7895
c:
Marc Hansen. County Attorney
Steve Farber. Council Staff Director
3
 PDF to HTML - Convert PDF files to HTML files
Montgomery County Lodge 35, Inc.
February 16,2011
Valerie Ervin, President
Montgomery County Council
100 Maryland Avenue
Rockville, Maryland 20850
Re: Montgomery County Organizational Reform Commission Final Report
Dear Ms. Ervin:
Without providing any supporting facts or attribution as to the source of its information,
the Montgomery County Organizational Reform Commission ("ORC") made the bald allegation
that several years ago effects bargaining delayed the implementation of a computerized police
report writing system. ORC Final Report, January 31, 2011, p. 37. The ORC did not ask FOP
35 about this issue. Had it done so, FOP 35 would have provided the following facts which
refute the ORC's assertion.
In
early February 2006, FOP 35 learned that the County
was
planning to require members
of the FOP bargaining unit to submit reports using a computerized report writing system called
PacketWriter. At the time, the County was not ready to implement the requirement. There were
technological and reliability problems with PacketWriter, not all officers had been trained to use
it, and no manual existed. Employees had the option of using PacketWriter or submitting paper
reports.
In
recognition of the benefit of union involvement in such matters, Montgomery County
law requires the County and the Union to bargain "[t]he effect on employees of the employer's
exercise of' a management right. Mont. Co. Code
§
33-80(a) (7). If the parties are unable to
agree after "good faith bargaining," either party may declare an impasse. Mont. Co. Code
§
33­
81(2) (B). The parties must submit the dispute to an impasse neutral no later than ten days after
either party declares an impasse. Mont. Co. Code
§
33-81(2) (D). The County may
temporarily implement its final offer if the impasse neutral does not issue a decision within 20
days after receiving the parties' final offers. Mont. Co. Code
§
33-81(2) (F)
Although the law requires the County to notifY the union that it intends to exercise a
management right that will have an effect on members of the bargaining unit, Mont. Co. Code
§
33-8l(2)(A), the County, in violation of the law, failed to notifY FOP 35 of its plans.
Concerned about the effects of the County's plan and unaware of its details, FOP 35 sent the
County Executive a demand to bargain. (Exhibit 1, February 10,2006 Demand to Bargain).
Although the transition to mandatory use of PacketWriter was a major technological change, as
18512 Office Park Drive
Montgomery Village, MD 20886
FAX
(30l) 590-0317
(301) 9484286 •
 PDF to HTML - Convert PDF files to HTML files
Valerie Ervin
February 16, 20
II
Page 2
is typically the case in effects bargaining, FOP 35 had only a few concerns, i.e. the availability
ofequipment for employees to access PacketWriter, employee training in the use of
PacketWriter, the availability oftyping training for employees, the lack of a Packet Writer user's
manual, potential occupational injuries, and employee accountability for submitting reports in
light of PacketWriter's functionality and reliability problems (e.g. lost reports, missing data,
computer freezes, insufficient chargers for mobile computers, and printing problems).
FOP 35's demand letter also asked for County proposals regarding the plans for requiring
employees to use PacketWriter. (Exhibit
I,
February 10, 2006 Demand to Bargain), Despite this
request, prior to the commencement of bargaining, the County provided no information about its
plans to implement mandatory use of PacketWriter. Consequently, when the parties met to
bargain, they spent much of the time during the first three meetings I on background information
and information exchange. FOP 35 submitted its first proposals at the second meeting, on May
2,2006. The County did not present a counterproposal until October 27,2006. At that time, the
County acknowledged that due to the need to resolve technological issues, it had not set an
implementation date. (See e.g., Exhibit 2, October 26, 2006 POL.ALL email).
Although PacketWriter functionality and reliability problems continued, in the spring of
2007, FOP 35 and the County began efforts to schedule further Packet Writer effects bargaining
as well as dates for mediation and arbitration.2 On May 9, 2007, the County suggested several
dates in June and July for mediation and arbitration. (Exhibit 3, May 9, 2007 email from Labor
Relations Manager Sarah Miller). FOP 35 agreed to schedule arbitration and mediation on July
16 and 20, 2007, provided the parties scheduled prior dates for meaningful negotiations. The
FOP stated that meaningful negotiations had not occurred because "the parties had met to
bargain only three times over a six month period, with much ofthe time spent on background
information and information exchange," and because "there had been significant changes to
PacketWriter" since the last meeting in October 2006. (Exhibit 4, May 25,2007 email from FOP
Lodge 35 attorney, Martha L. Handman). The only response FOP 35 received was an email
from Assistant County Attorney David Stevenson stating
that
he would forward the FOP email to
the County's labor relations manager. (Exhibit 5, May 25, 2007 email from Assistant County
Attorney David Stevenson). Meanwhile, problems with PacketWriter's functionality continued.
(See e.g., Exhibit 6, August 3, 2007 email from Cmdr. Darryl McSwain).
Valerie Ervin
IThe parties met to bargain three times in 2006, on April 5, May 2, and October 27.
2During this time period the parties were also bargaining the effects of the Employer's exercise
of another management right.
 PDF to HTML - Convert PDF files to HTML files
February 16,2011
Page 3
After hearing nothing more from the County about PacketWriter effects bargaining for
fifteen months, FOP 35 contacted the County on September 2, 2008 and asked
to
schedule
bargaining. (Exhibit 7, September 2, 2008 email from FOP Lodge 35 attorney, Martha
L.
Handman). The County agreed that the parties had not completed effects bargaining and made
the following suggestion: "I think we need to get our two groups together for a bargaining
session at which we
try
to refamiliarize ourselves with 'where we were' when bargaining tailed
offin the spring of2007, and at which we discuss changes (since spring 2007) in the status of the
Packet Writer system, and the practical impact of such changed circumstances." (Exhibit 8,
September 16, 2008 email from Assistant County Attorney David Stevenson). The County
suggested scheduling bargaining after October
13,
2007. (Exhibit 8, September 16,2008 email
from Assistant County Attorney David Stevenson). FOP 35 responded, suggesting bargaining
on October 21
and
29, 2008. (Exhibit 9, September 26,2008 email from FOP Lodge 35
attorney, Martha
L.
Handman). On October 3, 2008, the County notified FOP 35 that it did not
want to begin bargaining until after November
I,
2008. (Exhibit 10, October 3,2008 email from
FOP Lodge 35 attorney, Martha
L.
Handman). On October 27, 2008, FOP 35 suggested ten
dates for bargaining between November 14 and December 19, 2008. (Exhibit
II,
October 27,
2008 email from FOP Lodge 35 attorney, Martha
L.
Handman). The County replied that it might
want to postpone PacketWriter bargaining if the County and the FOP were to begin term
bargaining in November. (Exhibit 12, October 27,2008 email from Assistant County Attorney
David Stevenson). Term bargaining began in November, and the County did not pursue
bargaining for four months.
Indeed, the County did not contact FOP 35 about PacketWriter bargaining until February
26,2009. (Exhibit 13, February 26,2009 email from George Lacy). FOP 35 replied
suggesting dates in March. (Exhibit
14,
March 9, 2009 email from FOP Lodge 35 attorney,
Martha
L.
Handman). On March 10, the County informed FOP 35 that the target date for
implementing mandatory use of PacketWriter was June 1,2009. On March 16,2009, the County
gave
FOP
35
a draft proposal. The parties bargained on March 24, 2008 and April 6, 2008, with
FOP 35 giving the County a counter proposal on the latter date. On April 24, 2008, the County
submitted a counter proposal, and twelve days later the parties signed an agreement (Exhibit 15,
May 6,2009 Memorandum ofAgreement).
Had the County been ready to require mandatory use of PacketWriter for the submission
of reports, it could have declared an impasse once good faith bargaining had occurred, and
implemented the requirement within a month. The facts demonstrate that the County was not
ready for implementation. Prior to the start of bargaining in April 2006, it failed to inform FOP
35 of its implementation plans.
It
made its first proposal in late October 2006, but delayed
bargaining and setting
an
implementation date while it resolved technological problems. In May
2007, it failed to respond to FOP 35's suggestion that mediation and arbitration be scheduled in
July after meaningful negotiations. In September 2008, after acknowledging that meaningful
bargaining had not yet occurred, it postponed PacketWriter effects bargaining until after term
Valerie Ervin
 PDF to HTML - Convert PDF files to HTML files
February
16,2011
Page 4
negotiations. Meaningful bargaining did not occur until March
2009,
the same month in which
the County proposed an implementation date. Less
than
two months later, the parties reached
agreement.
There are great benefits in labor-management cooperation in such matters as the
transition to a computerized police report writing system. Not only does FOP
35
fully support
technological advances, union involvement enhances the efficiency and effectiveness of
important changes as labor and management jointly identify and resolve important issues. Since
FOP
3S
and the County reached agreement, no significant problems with PacketWriter have been
brought to the union's attention. In contrast, the County, acting without union input. has made
expensive mistakes, such as paying over
$48,000
for up-grading the police department's crime­
tracking software without testing whether the new software would work and implementing
scheduling and payroll software that has repeatedly calculated work schedules and employee pay
incorrectly.
Effects bargaining works. FOP 35 and the County have jointly resolved many issues
arising from the County's exercise of
its
management rights. In addition to PacketWriter, some
recent examples include the effects of reducing the number ofmaster police officers, assigning
additional sergeants to midnight shifts, changing canine officer work schedules, and standard
operating procedures.
Very truly yours,
~~/~
Lodge Attorney
enc.
cc:
The Honorable Isiah Leggett
Vernon
H.
Ricks, Jr.
Richard Wegman
Scott Fosler
Daniel Hoffinan
Len Simon
M. Cristina Echavarren
Joan Fidler
Susan K. Heltemes
 PDF to HTML - Convert PDF files to HTML files
Montgomery County Lodge 35, Inc.
April 22, 2011
VIA FACSIMILE
&
U.S. MAIL
The Honorable Valerie Ervin, President
Montgomery County Council
100 Maryland Avenue
Rockville, MD 20850
Re: Montgomery County Organizational Reform Commission Final Report
Dear Ms. Ervin:
In its Final Report, the Montgomery County Organizational Reform Commission
("ORC~')
attacked effects bargaining by falsely accusing Fraternal Order of Police, Montgomery
County Lodge #35 (FOP 35) of "recently delay[ing] the implementation of all [police
department] directives by refusing to respond to them." ORC made this false allegation without
providing any supporting facts or attribution as to its source of information and without asking
FOP 35 about its validity. Apparently ORC was either very slipshod in its work or more
interested in attacking effects bargaining than in obtaining accurate information on which to base
its recommendations.
This is not first time the County has attempted to blame FOP 35 for the County's failure
pursue implementation of department directives. In fact, in a good faith effort to resolve all
outstanding issues, FOP 35 has repeatedly and fruitlessly asked the County to identify all
outstanding matters between the parties, including directives. We have documented these
communications with the County and are willing to share them should it be necessary.)
Not all directives implicate effects bargaining. The collective bargaining agreement
specifies the procedures for reviewing directives. It requires the County to send the union draft
copies of proposed changes to directives and to categorize whether the subject matter involves a
mandatory subject of bargaining, the effects on employees of the exercise of a management right,
or a procedural change which involves neither.
By agreement, FOP 35 must notify the County if it disagrees with the categorization
within ten (10) business days. If FOP 35 does not respond, the County must follow-up in
writing. If FOP 35 fails to respond within ten (lO) business days of the follow-up, the failure will
)Copies of some of FOP
35's
correspondence with the County are enclosed.
18512 Office Park Drive
Montgomery Village, MD 20886
FAX
(301)
(301)
9484286 •
590-0317
w.l"
 PDF to HTML - Convert PDF files to HTML files
Valerie Ervin
April
22, 2011
Page
2
accordance with the Police Labor Relations Act ("PLRA"), Montg. County Code, §§
33-75
et
seq.
Mid-tenn changes to directives involving mandatory subjects of bargaining can be made
only if both FOP
35
and the County agree to bargain and then reach agreement. The parties must
negotiate all mandatory subjects during tenn bargaining. Changes involving the effects on
employees of the exercise of a management right must be bargained pursuant to Montg. County
Code §
33-81.
Either the County or FOP
35
can propose the directive for bargaining. If FOP
35
and the County agree that proposed changes involve a procedural matter which is not a
mandatory subject of bargaining and does not trigger effects bargaining, no response is required,
but the FOP has
21
days to submit comments to the County for consideration. If FOP
35
fails to
respond, the County must follow-up in writing to the FOP. The FOP's failure to respond within
14 days ofthe follow-up waives the FOP's opportunity to submit comments for consideration.
As of October
7,2010,
the County claimed that twelve directives were "at the FOP." Of
the twelve, one required no response because FOP
35
and the County agreed that it involved a
mandatory subject of bargaining. To date, the County has not asked the FOP to bargain it.
Another one of the twelve is a use of force directive. FOP
35
offered on July
21, 2008
and on
October
27,2008,
to meet with the County's representatives to discuss it midtenn. Some
discussions occurred, but further discussions were repeatedly delayed because the County was
working on a new draft ofthe directive. FOP finally received the new draft proposal on
February
16,2011,
and six days later, we responded to the County, again offering to meet and
discuss the directive with County representatives despite the disagreement over the
categorization. 2
In accordance with the procedures in the collective bargaining agreement, FOP
35
infonned the County that it disagrees with the County's categorization often of the other
directives that the County claimed were "at the FOP.,,3 The County categorized two of them as
involving the effects of management's exercise of a management right. FOP
35
categorized all
ten as involving mandatory subjects of bargaining. To date, the County has not proposed any of
them for bargaining or other resolution pursuant to the PLRA.
2The use offorce directive which FOP
35
received on February
16, 2011,
is the only proposed
directive FOP
35
has received from the County since June
16,2010.
Use of force is a
fundamental element of officer survival and self-defense and should never be taken lightly.
3Two of the proposed directives incorporated agreements between the County and FOP
35
that
were contained in the collective bargaining agreement. To avoid confusion and conflict in such
cases, FOP
35
has suggested that the County issue the directives as they apply to employees who
are not covered by the collective bargaining agreement and refer bargaining unit members to the
contract.
 PDF to HTML - Convert PDF files to HTML files
Valerie Ervin
April 22, 2011
Page 3
The PLRA provides an expedited process for resolving a dispute over the effects on
employees of the County's exercise of a management right. The process is triggered by the
County notifYing the union that it intends to exercise a management right which will have an
effect on members of the bargaining unit. If after good faith bargaining, the parties cannot
agree, either party may declare an impasse, and the dispute must be submitted to an impasse
neutral who must issue his decision within ten days after receiving the parties' final offers. If the
effect of the exercise of the management right has "a demonstrated, significant effect on the
safety of the public," the County may implement its last offer before engaging in impasse
procedure.
The delay in the implementation of directives is due to the County's failure to pursue
their implementation after FOP 35 responded to them. If and when the County notifies FOP 35
of its intent to pursue implementation. FOP 35 will continue to fulfill its obligations under the
collective bargaining agreement.
Very truly yours,
~~.~~-.)
Martha
L.
Handman
i'prrv
Lodge Attorney
:enc.
icc:
lsiah Leggett
Vernon
H.
Ricks, Jr.
Richard Wegman
Scott Foster
Daniel Hoffman
Len Simon
M.
Cristina Echavarren
Joan Fidler
 PDF to HTML - Convert PDF files to HTML files
Montgomery County Lodge 35, Inc.
18512 Office Park Drive
Montgomery Village. MD 20886
Phone: (30 l) 948-4286
Fax: (301)590-0317
September 10, 2008
Joseph Adler
Director
Office of Human Resources
Montgomery County Executive Office Building
101 Monroe Street,
t
h
Floor
Rockville, Maryland 20850
Dear Joe:
On March 20, 2008. in the interest of identifying and promptly resolving outstanding
matters, excluding PLP charges and grievances in progress between the union and
employer, Fraternal Order of Police. Montgomery County Lodge 35 requested that the
employer provide any and