Agenda Item 8
June 14, 2011
Introduction
MEMORANDUM
June 10,2011
TO:
FROM:
SUBJECT:
County Council
Robert
H.
Drummer, Senior Legislative Attorney
f"\
nVtc)
Introduction:
Bill 20-: 11, Personnel - Collective Bargaining Public
Accountability - Impasse Arbitration
Bill 20-11, Personnel
Collective Bargaining
Public Accountability - Impasse
Arbitration, 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 20-11 would establish an interest arbitration panel to resolve an impasse, require an
impasse arbitration hearing to be open to the public, and modify the criteria for the impasse panel
to apply. 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
FY13 begins in the fall.
Background
In its report to the Council dated January 31, 2011, the Organizational Reform
Commission (ORC), in
Recommendations
#19
and #20,
recommended amending the County
collective bargaining laws to establish an interest arbitration panel to resolve an impasse, require
an impasse arbitration hearing to be open to the public, and modify the criteria for the impasse
panel to apply.
The full text of the recommendation is below.
Public Accountability in Interest Arbitration
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1.
Change the criteria for the arbitrator to use to resolve a collective bargaining
impasse.
I
Interest arbitration is a method of resolving disputes over the tenns and conditions of a new
collective bargaining agreement. Grievance arbitration is a method of resolving disputes over
the interpretation or application of an existing collective bargaining contract. County Charter
§510 requires the Council to enact a collective bargaining law for police officers that includes
interest arbitration. Charter §51 OA requires the same for firefighters. Charter §511 authorizes,
but does not require, the Council to enact a collective bargaining law for other County employees
that may include interest arbitration or other impasse procedures. All of these Charter provisions
require any collective bargaining law enacted by the Council to prohibit strikes or work
stoppages by County employees. The Council has enacted comprehensive collective bargaining
laws with interest arbitration for police (Chapter 33, Article V), firefighters (Chapter 33, Article
X), and other County employees (Chapter 33, Article VII).
All three County collective bargaining laws require final offer by package arbitration requiring
the arbitrator to select the entire final offer covering all disputed issues submitted by one of the
parties. The arbitrator is a private-sector labor professional jointly selected by the Executive and
the union. Since 1983, there have been 17 impasses resolved by interest arbitration. One of the
impasses involved firefighters, one involved general County employees, and the other 15
involved the police.
The arbitrator selected the final offer of the International Association of Fire Fighters (IAFF) in
the one impasse with the firefighters and selected the County offer in the one impasse with
general County employees represented by the Municipal and County Government Employees
Organization (MCGEO). The arbitrator selected the FOP offer in II of the 15 impasses with the
police. The arbitrator selected the County offer over the FOP offer three times,
1
and the County
agreed to the FOP offer after the arbitration hearing one time. One explanation for these one­
sided results is a lack of public accountability in the interest arbitration system used to resolve
impasses with County unions.
One of the arguments often raised in challenges to interest arbitration laws is the lack of
accountability to the public. Legislatures enacting interest arbitration laws have responded to
this criticism in a variety of ways.
An
Oklahoma law authorizes a city council to call a special
election and submit the two proposals to the voters for a final decision, if the arbitrator selects
the union's final package. The Oklahoma Supreme Court upheld this unusual provision in
FOP
Lodge No.
165
v.
City of Choctaw,
933 P. 2d 261 (Okla. 1996). Some laws provide for political
accountability in the method of choosing the arbitrator. The Colorado Supreme Court upheld an
interest arbitration law, in part, because it required the city council to unilaterally select the list of
arbitrators in
FOP Colorado Lodge No.
19 v.
City of Commerce City,
996 P. 2d 133 (Colo.
2000). Finally, many interest arbitration laws provide for accountability by adopting guidelines
that the arbitrator must consider, require a written decision with findings of fact, and subject the
decision to judicial review for abuse of discretion, fraud, or misconduct. See,
Anchorage
v.
Anchorage Dep 't ofEmployees Ass 'n,
839 P. 2d 1080 (Alaska 1992).
The FOP appealed two of the three decisions in favor of the County to the Circuit Court. The Circuit Court
reversed a portion of the arbitrator's award in 2003 and affirmed the arbitrator's award for the County in 2008.
I
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We note that the Council enacted Expedited Bill 57-10, which modifies the criteria used by the
arbitrator in resolving collective bargaining impasses with each County employee union. We
support this legislation as a first step in the process of increasing public accountability in the
arbitration process used to resolve impasses, but we recommend an additional amendment.
Under the County collective bargaining laws before the enactment of Bill 57-10, an arbitrator
could only consider:
a. Past collective bargaining contracts between the parties, including the past bargaining
history that led to such contracts, or the pre-collective bargaining history of employee
wages, hours, benefits and working conditions;
b. Comparison of wages, hours, benefits and conditions of employment of similar
employees, of other public employers, in the Washington Metropolitan Area and in
Maryland;
c. Comparison of wages, hours, benefits and conditions of employment of other
Montgomery County personnel;
d. Wages, benefits, hours and other working conditions of similar employees of private
employers in Montgomery County;
e. The interest and welfare of the public; and
f. The ability of the employer to finance economic adjustments and the effect of the
adjustments upon the normal standard of public services by the employer.
The problem with these criteria can be seen in the most recent arbitration awards under the
County collective bargaining laws. For example, Arbitrator David Vaughn described his
understanding of the statutory criteria as follows:
"This provision does not require that any particular factor be considered or that
all of them be considered. It simply identifies the factors that I may consider.
Thus, I am free to determine whether any particular factor or factors weigh more
. heavily than others ... "
(MCGEO Arbitration Decision of March 22, 2010)
In the 2010 Police arbitration decision, Arbitrator Herbert Fishgold, applying these criteria,
found that the FOP's last offer for a 3.5% step increase, at a cost of$1.2 million, and a reinstated
tuition assistance program, at a cost of $455,000, was more reasonable than the County's offer of
no pay increase or tuition assistance. Mr. Fishgold found that the FOP had already given up a
previously negotiated 4.5% cost-of-living increase each of the past two years and had, therefore,
done enough to help balance the County's budget. The Council subsequently rejected both of
these economic provisions and required all County employees to take furloughs, including police
officers, in order to close an unprecedented budget deficit.
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The arbitrator should consider the funds available to pay personnel costs before considering
comparative salaries and past collective bargaining agreements. The bill, as enacted, requires the
arbitrator to evaluate and give the highest priority to the County's ability to pay before
considering the other five factors. The amendment that the Council ultimately rejected would
have gone further by requiring the arbitrator to determine first if the final offers were affordable
without raising taxes or lowering the existing level of public services. Although we support the
bill as enacted without this amendment, the amendment would have added important guidance to
. the arbitrator to determine affordability based upon existing resources only.
>-
We recommend new legislation that would include the amendment that was originally
supported by the Council's Government Operations and Fiscal Policy Committee on .
December
7.
~hange
the method of selecting the
arbi~~ra_t_o_r_.
_ _ _ _ _ _ _ _ _ _ _ _ _ _
--l
All three of the County's collective bargaining laws require the appointment of a professional
labor arbitrator who is mutually selected by the Executive and the union. Professional labor
arbitrators must avoid the appearance of favoring one side or the other in order to continue to be
selected. It is especially important for a professional labor arbitrator to avoid a veto by a national
union with affiliates representing public employees throughout the nation. The labor arbitrator is
accountable to the parties but not to the taxpayers.
The Baltimore County Code has a different system for resolving disputes with unions
representing non-public safety employees. The Code requires the appointment of a permanent
arbitration panel consisting of five members serving four-year terms. Three members are
appointed by the Council, one by the Executive, and one by the certified employee organizations.
The members serve without compensation. The law provides for mediation before a professional
mediator provided by the Federal Mediation and Conciliation Service, and fact-finding by a
neutral selected from a panel of experts provided by an impartial third-party agency. If the
parties are still unable to resolve the dispute, the arbitration panel conducts a hearing and issues
an advisory decision. The decision of the arbitrator is a non-binding recommendation to the
Executive, who makes the final decision.
Although this system has been in place for more than 10 years, only one dispute has been
submitted to the Board. In 2008, a jointly selected professional labor arbitrator serving as a fact­
finder recommended the employees receive a 3% pay increase after mediation. After reviewing
the fact-finder's report and meeting with each party, the Arbitration Board issued a non-binding
recommendation of no pay increase. The Executive accepted the Board's recommendation.
However, the Baltimore County voters approved a charter amendment in the 2010 general
election authorizing, but not requiring, the Baltimore County Council to enact a law requiring
interest arbitration for general county employees similar to the law governing public safety
employees.
The Baltimore Sun
recently reported that the Baltimore County Council is likely to enact an
interest arbitration law for general county employees. Although
it
is likely that Baltimore
County will move away from this system, the Colorado Supreme Court, in
FOP v. City of
Commerce City,
996 P.2d 133 (Colo. 2000), held that an interest arbitration statute must require
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the arbitrator to be accountable to the public. The Court held that the statute did not violate a
provision in the Colorado Constitution requiring political accountability for a person exercising
governmental power
only
because it required Commerce City to appoint unilaterally a
permanent panel of arbitrators that could be selected by the parties to resolve an impasse.
In New York, the Public Employees' Fair Employment Act, §209, establishes a three-person
arbitration board to resolve an impasse between a state or local government employer and a
union representing public safety employees. Each side chooses one arbitrator and the two
arbitrators select a third neutral party. If the parties are unable to agree, the State Public
Employee Relations Board (PERB) provides a list of neutral arbitrators that the parties must
choose from by alternate strikes. The list is created by the PERB without input from either party.
Section 806 of the Pennsylvania Public Employee Relations Act has a similar provision for a
three-person arbitration board, with the third member selected from a list provided by the State
PERB if the parties are unable to agree.
Maryland, however, does not have a comprehensive State law governing collective bargaining
with State and local government employees and does not have a State PERB with jurisdiction
over County government labor relations? Montgomery County collective bargaining laws
establish a single labor relations administrator for each bargaining unit to serve as the PERB.
The labor relations administrator is jointly selected by the Executive and the union.
Montgomery County collective bargaining laws require the labor professional jointly selected by
the parties to serve as both a mediator and the arbitrator. This dual role has the advantage of
granting the mediator/arbitrator greater authority during the mediation process. A party must
seriously consider any statement about a weakness in a party's position by a mediator who
ultimately will resolve an impasse as the arbitrator. Traditional mediation promotes the free flow
of ideas between the parties, in part, because the mediator has no authority to impose a
resolution. This free flow of ideas is diminished when the mediator will also serve as the
arbitrator. A major advantage of the dual role is that the mediator/arbitrator can issue a quicker
decision because he or she is already familiar with the issues at impasse. This speed is useful
due to the compressed schedule for bargaining, impasse resolution, and budget decisions.
However, we believe the better alternative for both mediation and arbitration would be to use a
jointly selected mediator and a separate arbitration board.
.);.-
We recommend establishment of a three-person arbitration board, with each party
,
selecting one member and the two parties selecting a
thi~rd_n_e_u_tr_a_l,,-p_a_rty-,,--.
_ _ _
~_--'
.
If the parties are unable to agree on a third party, we recommend following the New York and
Pennsylvania model of requiring the parties to select a third party from a pre-selected list of
neutrals appointed by the Council. The persons on the list would be appointed for a four-year
term of office without requiring the concurrence of either the union or the Executive. If the
parties are unable to agree on a person from the Council's list, they would be required to select
. an arbitrator through alternate strikes from the list.
.
Maryland does have a comprehensive labor relations law governing public school employees and recently
established a Maryland Public School Employee Relations Board. However, the members of this Board are jointly
selected by the employee unions and public school management.
2
5
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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:
19. Modify the criteria for arbitrators to use in addressing a collective
bargaining impasse.
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.
20. Change the method for selecting the arbitrator for
collective
bargaining.
The ORC report includes several recommendations concerning the collective
bargaining pr()cess. Since we are inthe midst of bargaining withaU three of our
employee unions, I do not think
it
is appropriate to comment on the Commission's
recommendations at this time.
Bill 20-11, sponsored by the Council President on recommendation of the ORC would
implement ORC Recommendations #19 and #20.
This packet contains:
Bi1120-11
Legislative Request Report
Circle #
1
16
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Bill No.
20-11
Concerning: Personnel
Collective
Bargaining - Public Accountability­
Impasse Arbitration
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 ofthe Organizational Refonn Commission
AN
ACT to:
(1 )
(2)
(3)
establish an interest arbitration panel to resolve an impasse;
modifY the criteria for the impasse panel to consider in arbitration; and
generally amend County collective bargaining laws.
By amending
Montgomery County Code
Chapter 33, Personnel and Human Resources
Sections 33-81, 33-108, and 33-153
By adding
Montgomery County Code
Chapter 33, Personnel and Human Resources
Section 33-103A
Boldface
Underlining
[Single boldface brackets]
Ooohle 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.
20-11
Sec. 1. Sections 33-81,33-108, and 33-153 are amended as follows:
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33-81.
Impasse procedure.
*
(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.
*
(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 certify the impasse for arbitration before an
impasse panel selected pursuant to Section 33-103A.
The
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impasse panel must require each party to submit a final offer
which shall consist either of a complete draft of a proposed
collective bargaining agreement or a complete package proposal,
as the impasse [neutral shall choose) panel chooses.
If only
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complete package proposals are required, the impasse [neutral
shall] panel must require the parties to submit jointly a
memorandum of all items previously agreed upon.
(4)
The impasse [neutral] panel may, in the impasse [neutral's]
panel's discretion, require the parties to submit evidence or make
oral or written argument in support of their proposals.
The
impasse [neutral may] panel must hold a hearing open to the
public for this purpose at a time, date and place selected by the
impasse [neutral] panel. [Said hearing shall not be open to the
public.]
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(5)
On or before February 1 [or prior thereto], the impasse [neutral)
panel must select, as a whole, the more reasonable, in the impasse
[neutral's) panel's judgment, of the final offers submitted by the
parties.
(A)
The impasse [neutral] panel must first [evaluate and give
the highest priority to] determine the ability of the County
to [pay for additional] afford any short-term and long-term
expenditures required by [considering] the final offers:
(i)
[the limits on the County's ability to raise taxes
under State law and the County Charter] assuming
no increase in any existing tax rate or the adoption
ofany new tax;
(ii)
[the added burden on County taxpayers, if any,
resulting from increases in revenues needed to fund
a final offer] assuming no increase in revenue from
an ad valorem tax on real property above the limit in
County charter Section 305; and
(iii)
considering the County's ability to continue to
provide the current [standard] level of all public
servIces.
(B)
[After evaluating the ability of the County to pay] If the
impasse panel finds under subparagraph (A) that the
County can afford both final offers, the impasse [neutral]
panel [may only] must consider:
(i)
the interest and welfare of County taxpayers and
service recipients;
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(ii)
past collective bargaining contracts between the
parties, including the bargaining history that led to
each contract;
(iii) a companson of wages, hours,
benefits~
and
conditions of employment of similar employees of
other
public
employers
In
the
Washington
Metropolitan Area and in Maryland;
(iv) a comparison of wages, hours, benefits, and
conditions of employment of other Montgomery
County employees; and
(v)
wages, benefits, hours and other working conditions
of similar employees of private employers in
Montgomery County_
(6)
The impasse [neutral] panel must:
(A)
not compromise or alter the final offer that [he or she
selects) they select;
(B)
(C)
select an offer based on the contents of that offer;
not consider or receive any evidence or argument
concerning the history of collective bargaining in this
immediate dispute, including offers of settlement not
contained in the offers submitted to the impasse [neutral)
panel; and
(D)
consider all previously agreed on items integrated with the
specific disputed items to determine the single most
reasonable offer.
(7)
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The offer selected by the impasse [neutral] panel, integrated with
the previously agreed upon items, [shall] must be [deemed to
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represent] the final agreement between the employer and the
certified representative, without the necessity of ratification by
the parties, and [shall have] has the force and effect of a contract
voluntarily entered into and ratified as set forth in subsection 33­
80(g) above. The parties [shall] must execute such agreement.
(C)
An impasse over a reopener matter or the effects on employees of an
exercise of an employer's 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).
(1)
Reopener matters.
*
(D)
*
*
If an impasse is declared under subparagraph (C), the
dispute must be submitted to the impasse neutral for
mediation no later than 10 days after impasse is declared.
If the impasse neutral certifies that an impasse exists after
mediation, the dispute must be resolved
by
an impasse
panel selected under Section 33-1 03A.
(E)
The impasse [neutral] panel must resolve the dispute under
the impasse procedure in subsection (b), except that:
(i)
the dates in that subsection do not apply;
each party must submit to the impasse [neutral]
panel a final offer on only the reopener matter; and
(ii)
(iii)
the impasse [neutral] panel must select the most
reasonable of the parties' final offers no later than 10
days after the impasse [neutral] panel receives the
final offers.
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*
(2)
(A)
*
*
Bargaining over the effects ofthe exercise of an employer right.
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
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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.
(D)
The parties must submit the dispute to the impasse neutral
for mediation no later than 10 days after either party
declares an impasse under subparagraph (B).
If the
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Impasse neutral certifies that an impasse exists after
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mediation, the dispute must be resolved
by
an impasse
panel selected under Section 33-103A.
(E) The impasse [neutral] panel must resolve the dispute under
the impasse procedures in subsection
(b),
except that:
(i)
the dates in that subsection do not apply;
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(ii) each party must submit to the impasse [neutral]
panel a final offer only on the effect on employees
of the employer's exercise of its right; and
(iii) the impasse [neutral] panel must select the most
reasonable of the parties' final offers no later than 10
days after the impasse [neutral] panel receives the
final offers and, if appropriate, must provide
retroactive relief.
(F)
If the impasse [neutral] panel has not issued a decision
within 20 days after the impasse [neutral] panel receives
the parties' final offers, the employer may implement its
final offer until the impasse [neutral] panel issues a final
decision.
33-108.
Bargaining, impasse, and legislative procedures.
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*
(d)
*
*
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Before September 10 of any year in which the employer and the
certified representative bargain collectively, the Labor Relations
Administrator must appoint a [mediator/arbitrator] mediator, who may
be a person recommended by both parties. The [mediator/arbitrator]
mediator must be available from January 2 to June 30.
Fees and
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expenses of the [mediator/arbitrator] mediator must be shared equally
by the employer and the certified representative.
o
r;\
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(e)
(I)
During the course of collective bargaining, either party may
declare
an
Impasse
and
request
the
servIces
of the
[mediator/arbitrator1 mediator, or the parties may jointly request
those services before an impasse is declared. If the parties do not
reach an agreement by February 1, an impasse exists. Any issue
regarding the negotiability of any bargaining proposal must be
referred to the Labor Relations Administrator for an expedited
determination.
(2)
Any dispute, except a dispute involving the negotiability of a
bargaining
proposal,
must
be
submitted
to
the
[mediator/arbitrator1 mediator whenever an impasse has been
reached,
or
as
provided
III
subsection
(e)( 1).
III
The
[mediator/arbitrator1 mediator must [engage
mediation1
mediate by bringing the parties together voluntarily under such
favorable circumstances as will encourage settlement of the
dispute.
(3)
If
the
[mediator/arbitrator1
mediator
finds,
III
the
[mediator/arbitrator's1 mediator's sole discretion, that the parties
are at a bona fide impasse, or as of February 1 when an impasse
is automatically reached, whichever occurs earlier, the dispute
must be submitted to binding arbitration before an impasse panel
selected under Section 33-103A.
(f)
(1)
If binding arbitration is invoked, the [mediator/arbitrator1
impasse panel 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
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proposal, as the [mediator/arbitrator] impasse panel directs. If
only
complete
package
proposals
are
required,
the
[mediator/arbitrator] impasse panel must require the parties to
submit jointly a memorandum of all items previously agreed
on.
(2)
The [mediator/arbitrator] impasse panel may require the parties
to submit oral or written evidence and -arguments in support of
their proposals. The [mediator/arbitrator may] impasse panel
must hold a hearing open to the public for this purpose at a
time, date, and place selected by the [mediator/arbitrator]
impasse panel. [This hearing must not be open to the pUblic.]
(3)
On or before February 15, the [mediator/arbitrator] impasse
panel must select, as a whole, the more reasonable of the final
offers submitted by the parties.
The [mediator/arbitrator]
impasse panel must not compromise or alter a final offer. The
[mediator/arbitrator] impasse panel 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] impasse panel must consider all previously
agreed-on items, integrated with the disputed items, to decide
which offer is the most reasonable.
(4)
In making
a determination under this
subsection,
the
[mediator/arbitrator] impasse panel must first [evaluate and give
the highest priority to] determine the ability of the County to [pay
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No. 20-11
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for additional] afford any short-term and long-term expenditures
[by considering] required
by
the final offers:
(A)
[the limits on the County's ability to raise taxes under State
law and the County Charter] assuming no increase in any
existing tax rate or the adoption of any new tax;
(B)
[the added burden on County taxpayers, if any, resulting
from increases in revenues needed to fund a final offer]
assuming no increase in revenue from an ad valorem tax
on real property above the limit in County Charter Section
305; and
(C)
considering the County's ability to continue to provide the
current [standard] level of all public services.
(5)
[After evaluating the ability of the County to pay] If the impasse
panel finds that under paragraph (4) the County can afford both
final offers, the [mediator/arbitrator] impasse panel [may only]
must consider:
(A)
the interest and welfare of County taxpayers and service
recipients;
(B)
past collective bargaining agreements between the
parties, including the past bargaining history that led to
each agreement;
(C)
a comparison of wages, hours, benefits, and conditions of
employment of similar employees of other public
employers in the Washington Metropolitan Area and in
Maryland;
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(D) a comparison of wages, hours, benefits, and conditions of
employment of other Montgomery County employees;
and
(E)
wages, benefits, hours, and other working conditions of
similar employees of private employers in Montgomery
County.
(6)
The offer selected by the [mediator/arbitrator] impasse panel,
integrated with all previously agreed on items, is the final
agreement
between
the
employer
and
the
certified
representative, need not be ratified by any party, and has the
effect of a contract ratified by the parties under subsection (c).
The parties must execute the agreement, and any provision
which requires action in the County budget must be included in
the budget which the employer submits to the County Council.
*
33-153.
*
*
*
*
Bargaining, impasse, and legislative procedures.
*
(g)
If the impasse neutral, in the impasse neutral's sole discretion, finds that
the parties are at a bona fide impasse, the impasse neutral must refer the
dispute to an impasse panel selected under Section 33-103A.
The
impasse panel must require the parties to jointly submit all items
previously agreed on, and each party to submit a final offer consisting of
proposals not agreed upon. Neither party may change any proposal after
it is submitted to the impasse [neutral] panel as a final offer, except to
withdraw a proposal on which the parties have agreed.
(h)
The impasse [neutral] panel may require the parties to submit
evidence or present oral or written arguments in support of their
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proposals. The impasse [neutral may] panel must hold a hearing open
to the public at a time, date, and place selected by the Impasse
[neutral] panel. [The hearing must not be open to the public.]
(i)
On or before February I, unless that date is extended by written
agreement of the parties, the impasse [neutral] panel must select the
final offer that, as a whole, the impasse [neutral] panel judges to be
the more reasonable.
(l)
In determining which final offer is the more reasonable, the
impasse [neutral] panel must first [evaluate and give the highest
priority to] determine the ability of the County to [pay for
additional] afford any short-term and long-term expenditures [by
considering] required
Qy
the final offers:
(A)
[the limits on the County's ability to raise taxes under State
law and the County Charter] assuming no increase in any
existing tax rate or the adoption of any new tax;
(B)
[the added burden on County taxpayers, if any, resulting
from increases in revenues needed to fund a final offer]
assuming no increase in revenue from an ad valorem tax
on real property above the limit in county charter Section
305; and
(C)
considering the County's ability to continue to provide the
current [standard] level of all public services.
(2)
[After evaluating the ability of the County to pay] If the impasse
neutral finds under paragraph (I) that the County can afford both
final offers, the impasse [neutral] panel [may only] must
consider:
r:;\
~
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BILL No. 20-11
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(A)
the interest and welfare of County taxpayers and service
recipients;
(B)
past collective bargaining agreements between the
parties, including the past bargaining history that led to
each agreement;
(C)
wages, hours, benefits and conditions of employment of
similar employees of other public employers in the
Washington Metropolitan Area and in Maryland;
(D)
wages, hours, benefits, and conditions of employment of
other Montgomery County employees; and
(E)
wages, benefits, hours, and other working conditions of
similar employees of private employers in Montgomery
County.
(j)
The impasse [neutral] panel must base the selection of the most
reasonable offer on the contents of the offer and the integration of any
previously agreed-on items with the disputed items. In making a
decision, the impasse [neutral] panel must not consider or receive any
evidence or argument concerning offers of settlement not contained in
the offers submitted to the impasse [neutral] panel, or any other
information concerning the collective bargaining leading to impasse.
The impasse [neutral] panel must neither compromise nor alter the
final offer that [he or she selects] they select.
(k)
The final offer selected by the impasse [neutral] panel, integrated with
any items previously agreed on, is the final agreement between the
parties, need not be ratified by any party, and has the force and effect
314
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BILL No. 20-11
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of an agreement voluntarily entered into and ratified under subsection
(c). The parties must execute that agreement.
*
33-103A.
Impasse Panel.
Purpose.
*
*
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Sec. 2. Section 33-103A is added as follows:
{ill
An
impasse panel may conduct
~
hearing and resolve an
~
Impasse in collective bargaining between
certified employee
representative and the employer under Sections 33-81, 33-108, and 33­
153.
M
Neutral member.
The Council must appoint
members for staggered 3-year terms.
~
neutral impasse panel
To implement the staggered
terms, the Council must appoint the first and second members to
~
year term, the third member to
members to
~
~
one-year term, and the fourth and fifth
2-year term. After these initial appointments, the Council
must appoint all members to 3-year terms, except for any member
appointed to fill
~
vacancy.
If
~
vacancy is created
by
~
neutral
member's death, disability, resignation, non-performance of duty, or
other cause, the Council must appoint
~
neutral member to complete the
member's term. Each neutral member must be
~
resident of the County
experienced in conducting an adjudicatory hearing.
332
333
334
335
336
337
i£1
Composition.
An
impasse panel contains
.:l
members. One member
must be selected
by
the certified employee representative involved in
the impasse. One member must be selected
by
the employer. The
employee representative member and the employer representative
member may jointly select the neutral member. If they are unable to
agree, they must select
~
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339
340
341
neutral member from the
~
neutral impasse
members appointed by the Council by alternating strikes with the
8
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ore - impasse arb\bill 1.doc
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No. 20-11
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employee representative making the first strike until only
member remains.
1
neutral
@
Term.
An
impasse panel selected under subsection
(Q)
serves until the
Council takes final action on the collective bargaining agreement at
Impasse.
ill
Procedure.
The neutral member is the panel chair and must preside at
any hearing. A majority of the impasse panel must vote for
resolving an impasse.
~
decision
ill
Compensation.
The employer and the certified representative must
lli!Y
any fees and expenses for their own representative. Fees and expenses
of the neutral member must be shared equally
.Qy
the employer and the
certified representative.
Approved:
356
Valerie Ervin, President, County Council
357
Date
Approved:
358
Isiah Leggett, County Executive
359
Date
This is a correct copy ofCouncil action.
360
Linda M. Lauer, Clerk of the Council
Date
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LEGISLATIVE REQUEST REPORT
Bill 20-11
Personnel
DESCRIPTION:
Collective Bargaining
­
Public Accountability Impasse Arbitration
Bill
20-11 would establish an interest arbitration panel to resolve an
impasse, require an impasse arbitration hearing to be open to the
public, and modify the criteria for the impasse panel to apply.
The Organizational Refonn Commission recommended these
changes to the County collective bargaining laws.
To increase public accountability in the impasse arbitration process.
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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(ii:)