Agenda Item 7
June 14,2011
Introduction
MEMORANDUM
June 10, 2011
TO:
FROM:
SUBJECT:
County Council
Robert H. Drummer, Senior Legislative Attorney
VJ\
~
Introduction:
BilI 19-11, Personnel- Collective Bargaining - Public Access
Bill 19-11, Personnel - Collective Bargaining - Public Access, sponsored by the Council
President on recommendation of the Organizational Reform Commission, is scheduled to be
introduced on June 14, 2011. A public hearing is tentatively scheduled for July 12 at 1:30 p.m.
Bill 19-11 would require the Council to hold a public hearing on each collective
bargaining agreement submitted to it, change certain dates in the collective bargaining process,
and require public disclosure of each party's initial bargaining position on major economic
provisions. 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
FYI3 begins in the falL
Background
In its report to the Council dated January 31, 2011, the Organizational Reform
Commission (ORC), in
Recommendation
#18,
recommended amending the County collective
bargaining laws to require the Council to hold a public hearing on each collective bargaining
agreement submitted to it, change certain dates, and require public disclosure of each party's
initial bargaining position on major economic provisions.
The full text ofthe recommendation is below.
Public Accountability in Collective Bargaining
Collective bargaining sessions with County government employee unions are held in meetings
closed to the public. The proposals and counter-proposals made by each side are never made
public. If the parties reach impasse and invoke interest arbitration, the evidentiary hearing
conducted by the arbitrator must be closed to the public. The terms of a negotiated agreement or
an arbitrator's award are not made public until they are sent to the Council for approvaL The
intent of this confidentiality is to encourage the parties to speak freely without fear of their
statements being used against them. Attendance at negotiating sessions by members of the
public and the news media could inhibit the free and open discussion necessary to resolve
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disputes. However, open meetings could also inhibit the parties from making unrealistic
demands and statements.
Collective bargaining in open meetings has been tried in Maryland. In 1981, the Carroll County
Board of Education adopted a resolution that all collective bargaining meetings with the union
representing public school teachers would be conducted in public. The union challenged the
Board's resolution in Court, alleging that it was a failure to bargain in good faith. Despite the
authority to conduct closed meetings to discuss collective bargaining in the Maryland Open
Meetings Law, the Court of Appeals held that the Board could insist on open meetings without
violating the duty to bargain in good faith. See,
Carroll County Education Association, Inc.
v.
Board ofEducation ofCarroll County,
294 Md. 144 (1982).
More recently, Washington County Public Schools required the school unions to participate in
open collective bargaining sessions in 2006. The parties eventually agreed to ground rules for
open bargaining that provide for a closed session at the beginning of each meeting to explore
new ideas, followed by an open meeting. All proposals and counter-proposals were made public
in the open meeting.
We do not believe that all collective bargaining sessions should be open to the public. The
parties must be able to speak freely without fear of each statement being published in the news
media in order to negotiate in good faith. However, the current system eliminates almost all
public input into the collective bargaining process.
~
We recommend a modest increase in public accountability that would continue to
permit the parties to speak freely during negotiations.
Specifically, we recommend that:
1. The initial proposals and counter-proposals in collective bargaining negotiations from
both parties should be publicly posted on the County's website for public comment.
The negotiated collective bargaining ground rules with each County employee union
should contain a final date for each party to submit all of their proposals for
bargaining. We recommend posting the positions of each party, as of that date.
This
could be done by the Executive without changing current law or, alternatively, by the .
..._ _..
.
.~
'---_C_o_uncil amending County law.
I
Reservation of Organizational Reform Commissioner Susan Heltemes: Historically, the integrity of the
collective bargaining process has functioned under stringent guidelines that rely on the integrity of all persons
involved in the negotiations to maintain confidentiality to the process until a final product/agreement is attained.
The final product is open to the public and hearings are held by the Montgomery County Council. Initial disclosures
of proposals would likely establish unrealistic expectations not only for management, but also for employees since
initial proposals are usually not where the negotiations come down at the conclusion of bargaining. If opening
proffers were open to the public, it is likely that outside input could obstruct the bargaining process and interfere
with tight timelines and strategy. Such obstruction could alter the negotiating process and ultimately end in more
arbitration and deterioration of what has become a respected form of negotiation for our public sector employees.
It
is important to note that Park and Planning employees, as well as HOC, Montgomery College and MCPS
employees, function under state guidelines that are different than those for the firefighters, police and
MCGEO. Furthermore, it seems unlikely that making opening proposals from the County and unions prior to
negotiating would actually result in savings. Such proposed savings are mere conjecture and not worth the effort of
upsetting a time honored process that works.
I
2
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2. The Council should conduct a public hearing on all collective bargaining agreements
before the Council's annual budget hearings. In order to accommodate this additional
public hearing, we recommend that the statutory time periods for declaring impasse
and completing arbitration be moved back by two weeks.
The Council would have to
amend current law to change these dates. The Council has the current authority to
hold a public hearing on collective bargaining agreements, but there is often not
p.lll,)u(:;rn
time to do this.
I
Bargaining Law
Police
General County
L
Emgloyees
Fire and Rescue
The following chart shows the current statutory dates and our recommended new dates:
i
Current
Impasse Date
January 20
February 1
January 15
Current
Arbitration Date
February 1
February 15
February 1
i
New
Impasse
January 6
January 15
January 2
New Arbitration
Date
18
February 1
January17
Janu~ry
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:
18. Make the colJective bargaining process more transparent and increase
opportunities for public input on
(a) initial proposals; and
(b) the end of the process.
The ORC report included 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 19-11, sponsored by the Council President on recommendation of the ORC would
implement ORC Recommendations #18.
This packet contains:
Bill 19-11
Legislative Request Report
Circle
#
1
10
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Bill No.
19-11
Concerning: Personnel
Collective
Bargaining - Public Access
Revised: June 7, 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 recommendation of the Organizational Reform Commission
AN
ACT to:
(1)
(2)
(3)
(4)
require the Council to hold a public hearing on each collective bargaining agreement
submitted to it;
change certain dates;
require public disclosure of each party's initial bargaining position on major
economic provisions; and
generally amend County collective bargaining laws.
By amending
Montgomery County Code
Chapter 33, Personnel and Human Resources
Sections 33-80,33-81,33-108, and 33-153
Boldface
Underlining
[Single boldface brackets1
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:
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BILL
No. 19-11
1
Sec. 1. Sections 33-80,33-81,33-108, and 33-153 are amended as follows:
33-80.
Collective bargaining.
2
3
4
5
6
7
*
(d)
*
*
Time limits.
Collective bargaining [shall commence] must begin no later
than November 1 [preceding a] before any fiscal year for which there is
no contract between the employer and the certified representative and
[shall] should be concluded by January [20] Q. The employer must
publish the certified representative's initial proposal on economic terms
and the employer's initial counter-proposal on economic terms on an
internet site accessible to the public within 10 days after the employer's
initial counter-proposal is made.
The resolution of an impasse in
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9
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13
collective bargaining [shall] must be completed by [February 1] January
lQ.
These time limits may be waived only by prior written consent of
the parties.
14
15
16
17
18
19
*
*
*
(g)
Submission to Council.
A ratified agreement [shall be] is binding on the
employer and the certified representative, and [shall] must be reduced to
writing and executed by both parties.
In each proposed annual
operating budget, the County Executive [shall} must describe any
collective bargaining agreement or amendment to an agreement that is
scheduled to take effect in the next fiscal year and estimate the cost of
implementing that agreement. Any term or condition of a collective
bargaining agreement which requires an appropriation of funds or
enactment, repeal.1 or modification of a County law [shall] must be
timely submitted to the County Council by the employer by [April 1]
March 15, unless extenuating circumstances require a later date. If a
later submission is necessary, the employer [shall] must specify the
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BILL
No.
19-11
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submission date and the reasons for delay to the Council President by
[Aprill] March 15. The employer [shall] must make a good faith effort
to have such term or condition implemented by Council action. Each
submission to the Council [shall] must include:
(I)
all proposed legislation and regulations necessary to implement
the collective bargaining agreement;
(2)
all changes from the previous collective bargaining agreement,
indicated by brackets and underlines or a similar notation system;
and
(3)
all side letters or other extraneous documents that are binding on
the parties.
(h)
Council review.
The Council must hold
£!:
public hearing to allow the
parties and the public to testify on the agreement. On or before May
1, the County Council [shall] must indicate by resolution its
[intention] intent to appropriate funds for or otherwise implement the
agreement or its [intention] intent not to do so, and [shall] must state
its reasons for any intent to reject any part of the agreement. The
Council, by majority vote taken on or before May 1, may defer the
May 1 deadline to any date not later than May 15. If the Council
indicates its [intention] intent to reject any part, it [shall] ll1ust
designate a representative to meet with the parties and present the
Council's views in their further negotiations.
This representative
[shall] must also participate fully in stating the Council's position in
any ensuing impasse procedure. The parties [shall] must thereafter
meet as promptly as possible and attempt to negotiate an agreement
acceptable to the Council. Either [of the parties]
Pill!Y
may initiate the
impasse procedure [set forth] described in Section 33-81. The results
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BILL
No.
19-11
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of the negotiation or impasse procedure [shall] must be submitted to
the Council on or before May 10. If the Council has deferred the May
1 deadline, that action automatically postpones the May 10 deadline
by the same number of days.
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*
33-81.
Impasse procedure.
*
*
(a)
Before September 10 of any year in which the employer and a certified
representative bargain collectively, they shall choose an impasse neutral
either by agreement or through the processes of the American
Arbitration Association. The impasse neutral [shall be required to] must
be available during the period from January
[20]
Q to [February
1]
January.lli. Fees, costs and expenses of the impasse neutral [shall] must
be shared equally by the employer and the certified representative.
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(b)
(1)
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]
Q, an impasse exists.
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*
(5)
*
*
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On or before [February
1]
January .lli, the impasse neutral must
select, as a whole, the more reasonable, in the impasse neutral's
judgment, of the final offers submitted by the parties.
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*
33-108.
*
*
Bargaining, impasse, and legislative procedures.
(a)
Collective bargaining must begin no later than November 1 before the
beginning of a fiscal year for which there is no agreement between the
employer and the certified representative, and must be finished on or
before [February 1] January
80
81
U.
The employer must publish the
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BILL
No.
19-11
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certified representative's initial proposal on economic terms and the
employer's initial counter-proposal on economic terms on an internet
site accessible to the public within
lQ
days after the employer's initial
counter-proposal is made.
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*
(e)
(I)
declare
an
*
impasse
and
*
request
the
services
of the
During the course of collective bargaining, either party may
88
89
mediator/arbitrator, or the parties may jointly request those
services before an impasse is declared. If the parties do not reach
an agreement by [February
90
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92
93
94
95
IJ
January
12,
an impasse exists.
Any issue regarding the negotiability of any bargaining proposal
must be referred to the Labor Relations Administrator for an
expedited determination.
*
(3)
*
*
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100
If the mediator/arbitrator finds, in the mediator/arbitrator's sole
discretion, that the parties are at a bona fide impasse, or as of
[February
lJ
January
12
when an impasse is automatically
reached, whichever occurs earlier, the dispute must be submitted
to binding arbitration.
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105
(f)
(1)
If binding arbitration is invoked, the mediator/arbitrator must
require each party to submit a final offer, which must consist
either of a complete draft of a proposed collective bargaining
agreement
or
a
complete
package
proposal,
as
the
mediator/arbitrator directs. If only complete package proposals
are required, the mediator/arbitrator must require the parties to
submit jointly a memorandum of all items previously agreed on.
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107
108
*
*
*
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BILL
No.
19-11
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(3)
On or before February [15]
1,
the mediator/arbitrator must select,
as a whole, the more reasonable of the final offers submitted by
the parties. The mediator/arbitrator must not compromise or alter
a final offer. The mediator/arbitrator must not consider or receive
any argument or evidence related to the history of collective
bargaining in the immediate dispute, including any previous
settlement offer not contained in the final offers. However, the
mediator/arbitrator must consider all previously agreed-on items,
integrated with the disputed items, to decide which offer is the
most reasonable.
*
(g)
*
*
In each proposed annual operating budget, the County Executive must
describe any collective bargaining agreement or amendment to an
agreement that is scheduled to take effect in the next fiscal year and
estimate the cost of implementing that agreement. The employer must
submit to the Council by [April 1] March
12,
unless extenuating
circumstances require a later date, any term or condition of the
collective bargaining agreement that requires an appropriation of
funds, or the enactment or adoption of any County law or regulation,
or which has or may have a present or future fiscal impact. If a later
submission is necessary, the employer must specify the submission
date and the reasons for delay to the Council President by [April 1]
March
12.
The employer must expressly identify to the Council and
the certified representative any term or condition that requires Council
review. Each submission to the Council must include:
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BILL No. 19-11
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153
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(1)
all proposed legislation and regulations necessary to implement
the collective bargaining agreement;
(2)
all changes from the previous collective bargaining agreement,
indicated by brackets and underlines or a similar notation
system; and
(3)
all side letters or other extraneous documents that are binding
on the parties.
The employer must make a good faith effort to have the Council
approve all terms of the final agreement that require Council review.
(h)
The Council [may] must hold a public hearing to enable the parties
and the public to testifY on the agreement.
*
33-153.
(a)
*
*
Bargaining, impasse,
and
legislative procedures.
Collective bargaining must begin no later than the November 1 before
the beginning of a fiscal year for which there is no agreement between
the employer and the certified representative, and must be completed
on or before January [15]
2.
The resolution of a bargaining impasse
must be completed by [February 1] January
ll.
These time limits
may be waived or extended by written agreement of the parties. The
employer must publish the certified representative's initial proposal
on economic terms and the employer's initial counter-proposal on
economic terms on an internet site accessible to the public within
lQ
days after the employer's initial counter-proposal is made.
*
(d)
*
In
*
which the employer and the
Before September 10 of any year
certified representative bargain collectively, they must choose an
G
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BILL
No. 19-11
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impasse neutral, either by agreement or through the processes of the
American Arbitration Association. The impasse neutral must be
available from January [15]
2
to [February 1] January
11.
The impasse
neutral's fees and expenses must be shared equally by the employer and
the certified representative.
(
e)
During the course of collective bargaining, either party may declare an
impasse and request the services of the impasse neutral, or the parties
may jointly request those services before declaring an impasse. If the
parties have not agreed on a collective bargaining agreement by January
[15]
2,
an impasse exists by operation of law.
*
(i)
*
*
On or before [February 1] January
11,
unless that date is extended by
written agreement of the parties, the impasse neutral must select the
final offer that, as a whole, the impasse neutral judges to be the more
reasonable.
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*
(1)
*
*
In each proposed annual operating budget, the County Executive must
describe any collective bargaining agreement or amendment to an
agreement that is scheduled to take effect in the next fiscal year and
estimate the cost of implementing that agreement.
The annual
operating budget must include sufficient funds to pay for the items in
the parties' final agreement. The employer must expressly identifY to
the Council by [April 1] March
U,
unless extenuating circumstances
require a later date, all terms and conditions in the agreement that:
(1)
(2)
require an appropriation of funds, [or]
are inconsistent with any County law or regulation, [or]
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BILL
No. 19-11
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(3)
reqUIre the enactment or adoption of any County law or
regulation, or
(4)
which have or may have a present or future fiscal impact.
If a later submission is necessary, the employer must specify the
submission date and the reasons for delay to the Council President by
[April
1]
March
12.
The employer must make a good faith effort to
have the Council take action to implement all terms and conditions in
the parties' final agreement.
*
(n)
*
*
The Council [may) must hold a public hearing to enable the parties
and the public to testify on the agreement.
*
Approved:
*
*
200
Valerie Ervin, President, County Council
201
Date
Approved:
202
Isiah Leggett, County Executive
203
Date
This is a correct copy ofCouncil action.
204
Linda M. Lauer, Clerk of the Council
Date
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LEGISLATIVE REQUEST REPORT
Bill 19-11
Personnel
-
Collective Bargaining Public Access
DESCRIPTION:
Bill 19-11 would require the Council to hold a public hearing on each
collective bargaining agreement submitted to it, change certain dates
in the collective bargaining process, and require public disclosure of
each party's initial bargaining position on major economic
provisions.
The Organizational Refonn Commission recommended these
changt:s to the collective bargaining laws.
To increase public access to the collective bargaining process with
County employees.
County Executive, County Attorney, Human Resources
To be requested.
To be requested.
To be requested.
To be researched.
Organizational Refonn 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.
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