Agenda Item 9
July 12, 2011
Public Hearing
MEMORANDUM
July 8, 2011
TO:
FROM:
SUBJECT:
County Council
Robert H. Drummer, Senior Legislative Attorney
6"\
('Uf7
Duty to Bargain
Public Hearing: Bill 18-11 , Police Labor Relations
Bill 18-11, 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 joint Public Safety/Government Operations and Fiscal Policy Committee worksession
is tentatively scheduled for July 14 at 10:30 a.m.
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 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
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 §33-80. 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
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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 bargai;ing" 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
management established to improve efficiency.
The FOP has recently delayed the
• 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.
Issues
1. What is the 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
2
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between County Executive Gilchrist and representatives of the Fraternal Order of Police (FOP).
1
The "effects bargaining" provision was added to the Bill at a Council Committee worksession.
The April 6, 1982 Council meeting minutes described the debate over "effects
bargaining."z 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 ©1O)
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 §511, 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
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? 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 §51OA, 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.
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:
http://www.montgomerycountymd.gov/contentlcouncil/olo/reports/pdti'2009-5.pdf
2
April 6, 1982 Council Legislative Minutes at pp. 3864-3868 at ©8-12.
3
April 22, 1986 Public Hearing Transcript, p. 10 at © 13-14.
4
June 5, 1986 Council Legislative Minutes, pp. 3-4 at ©15-17.
1
3
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"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.
LaborlEmployee 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.
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.
See the 2008 OLO Report at pp. 133-139.
6
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.
5
4
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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)),7 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. §6-510) contain an "effects bargaining" provision.
This packet contains:
Bi1l18-11
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
Circle #
1
7
8
13
15
18
21
F:\LAW\B1LLS\1118 Police Bargaining - ORC\PH Memo.Doc
7
Effects bargaining exists for general employees under Art. 28-112.10), but not for police officers under Art. 28 §5­
114.l.
5
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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 Dale: _N:...:.o"'-!n..:.::e:...-_ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President on the recommendation of the Organizational Refonn Commission
AN
ACT to:
(1)
(2)
modify the scope ofbargaining 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 t:.-'{:isting 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 thefollowing Act:
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BILLNo.1S-11
1
2
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:
(1)
Salary and wages, provided, however, that salaries and wages
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
ofpersonal 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
~
loss
of existing jobs in the unit.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
*
33-81.
Impasse procedure.
*
*
*
*
23
24
*
(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,
an impasse exists.
25
26
27
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BILL
No.
18-11
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*
(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.
(An 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."
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BILL No. 18-11
55
56
57
58
59
[(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.
[(e)]
60
61
62
63
.1
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
(e)]
paragraph
64
65
J,
the dispute must
be
submitted to the impasse neutral no later
than 10 days after impasse is declared.
[(E)]
~
66
67
The impasse neutral must resolve the dispute under the
68
impasse procedure in subsection (b), except that:
[(i)]
69
70
71
A. the dates in that subsection do not apply;
[(ii)] B. each party must submit to the impasse neutral a final
offer on only the reopener matter; and
[(iii)]
72
73
e.
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
74
75
76
77
78
79
bargaining agreement have designated:
[(i)]
A. the specific reopener matter to be bargained;
[(ii)]
B. the date by which bargaining on the reopener matter
must begin; and
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BILL
No. 18-11
80
81
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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.]
8
fjl,wlblll,\1118
0<'''' _",''' -
0""bill1.doo
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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 10 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)
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
(ii)
(iii)
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 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
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LEGISLATIVE REQUEST REPORT
Bill 18-11
Police Labor Relations Duty to Bargain
DESCRIPTION:
Bill 18wll
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.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
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.
None.
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(Z)
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3864
4/6/f!2
Re:
Deferral of Bill No.
7~-81.
ODen
MeetinRs 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
Co~sumer
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
Bar~aininR
for Police
-
reading.
the
Bill No. 71-81, Collective Bargaining for Police, was called for final
Mr. Hillman, Special Counsel far 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
Counc~l
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
-
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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 shut down a plant, nor the implementation of the shutdown.
However, the
employer does have a duty to bargain over the effects on employees, such as
severence pay and seniority rights.
President Potter expresaed the view that a more precise phrase would
be ''bargain over the amelioration of the effects on employees."
Mr. Hillman expressed the view that the phrase suggested by President
Potter is unnecessary because the words
established meanings.
At the suggestion of President Potter and without objection, the Council
restored the word
~
t~at
have been used already have well-
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 s.econded and without objection,
the Council restored the language of subsection (b)(Z), page 19, as follows:
To maintain and improve the efficiency and effectiveness of onerations;.
After discussion and without objection, the Council inserted the word
only after "employees" on line II, page 18, to clarify that c.ollective 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
11L
.~
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.
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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
a~reement
after the word "action" in the same line.
At the suggestion of President Potter and without objection, the
Council deleted the word [most] from lineS. page
2S,
and inserted in lieu
thereof more.
The Council also corrected 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 without objection. the
Council inserted a
COIJIIIa
after the word "interest" on the sixth line of
subsection (c), page 32.
(The Council recessed from 3:10 P.M. to 3:30 P.M: to allow Councilmembers
an opportunity to read through Bill No. 11-81 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 1, page 10; and line 18. page
11; and deleted the phrase (disagreement over obligation to bargain collectively]
--
from line 1. page 10.
At the suggestion of President Potter 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 that the legislative history of Bill No. 11-81
should be clear that the Council defines "effect" as used in Section 33-80(61)(7)
in a restrictive sense.
The word shall not be used as a way of initiating
If the interpretation
collective bargaining over any items that are employer rights.
is expanded, the Council will have to consider amendments to the law.
_ _ _ _ _ _ _ _ _
0 "_ _ _ 0 _ _
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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 sucb 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 decision; about whether to lay'
off and how many employees are to be affected are clearly employer's rights.
Councilman 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 DIOre problems 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 suggestion 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 times 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
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3868
4/6/82
-",
Councilman Scull's motion failed, Counci1members Gelman aRd Scull
voting in the affirmative, Councilmembers Potter, Fosler
and
Crenca voting
in the negative, Councilman Gudis not voting and Counci1wQm&n 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.
Cou~cilman
It would be disadvantageous to both parties
Fosler expressed the view that there are legitimate
One of the key factors
. concerns as
~o
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 Councilwomah crenes, duly seconded and without objection,
the Council approved the following amendments as reflected in Draft No. 4 of
Bill No. 71-81 (amendments approved by the Couneil 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 is
It is an item that may
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1
2
MONTGOMERY COUNTY COUNCIL
3
4
PUBLIC HEARING
5
6
7
April 22, 1986
- - - - - - -x
8
Bill 19-86
9
10
11
- - - - - - - - - - - -
*
*
*
-x
The hearings were held in the Third Floor
Hearing Room, County Office Building,
100
Maryland
Avenue, Rockville, Maryland, at
7:30
p.m., William
Hanna, President, presiding.
12
13
14
15
16
PRESENT:
WILLIA..TI1 HANNA
NEAL POTTER
SCOTT FOSLER
DAVID SCULL
ESTHER P. GELMAN
MICHAEL GUDIS
ROSE CRENCA
President
CJ1
17
18
19
Vice President
Member
Member
Member
Member
Member
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
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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
need,
a
2
3
4
5
6
7
8
9
10
11
based on organizational
typically, to improve the effectiveness of
Under the
operations and delivery of services.
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
12
13
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
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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
DISCUSSED: The memorandum to the Council from
Coun
Director Spengler, dated June 3, 1986, setting
forth.~~fi
to be
• the provision in Section l-13(c) regarding the
which an emp
receive a remedy from the date of filin
position of the
el Office that no harm is done to
t~",_
decision is made re
the reclassification request
and, therefore, there
eed for a retroactive
Mr. Thompson, attorney for
ntgomery Count
Organization (MCGEO) that the p
n of Se£'1I:.:L£1Il
retroactive provision for reallocat
classes of employees such as the nurse ,;
position reclassifications;
conce~res
various Counci1members that
future rec1assification/rea11oc
actions no
long as it took to
reclassify the nurses; the f
ar cycle for reel
cation reviews and
the ability of the Perso
ffice to keep up with tha
edu1e; the opinion
of Councilmember Gel
it was inappropriate for the
y to appeal a
decision of the Mer
stem Protection Board regarding the
sification
of the nurses, a
r desire for the County Attorney to brief
with the Coun
efore initiating such action; the desire of
otter to differentiate in Section 1-13 between those
equest routinely at the beginning of a five-year reclassif
Ie in order to obtain the maximum benefit
i f
their position is
ified or reallocated upwards, and those cases where retroactivity i
fied, and his inability to find the appropriate language to make the
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3
6/5/86
On
page 31, lines 13 through 17, delete subsection Cd) 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 4.0.
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 MCGEQ
(Local 400), that the broader language is usually included in collective
barga~n~ng leg~slat~on,
and
1s
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; Counci1member 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; Counci1member Potter's belief that
a broader definition of "grievance procedure" is needed; the statement by
Counci1member Fosler concerning the need for continuous communication berween
employees and
employers
when collective bargaining
for
public
emplnyees
is
initiated
to
avoid
misunderstandings, and his support of the provision
@
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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; Councilmember 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:
In
subsection 33-l07(b) (17) , after "representative," substitute.J.
for [.] and add unless another date for notification is
by the parties.
a~reed
upon
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 agreement; Councilmember 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; Councilmember 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-l08(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; Councilmember 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
33-108(g) •
ACTION:
Amended, without objection, subsection 33-108(g), the last sentence,
to substitute to which the parties have for [that has been agreed}
and to add .J. after "to."
o
o
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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 ot Hwnan Resources
James E. Torgesen, LaborlEmployee Relations
Managec~
--;;:'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 aad 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
~
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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 will 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~te
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' ovm salary schedule. Also, although
sergeants do work the same shift structure as those 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
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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
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:Montgomery County Lodge 35, Inc.
June 2, 2000
c::;)
c
Z
C
~
':"-~
Honorable Derick Berlage
Montgomery County Council
100 Maryland Avenue
Rockville, Maryland 20850
BilllO-OO
Dear Mr. Berlage:
- r-.:>
,
r-. '.
<:..
-.
a
Collective Bargaining
-
Police Sergeants
!l:::t
,-:
1'"-.
,
"
c...,)
-
......
'-
..
Again, on behalf of Lodge 35 and its members, including police sergeants, I
want to thank you and the co-sponsors of Bill
to-~O
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 Corrunittee,
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 LabQr Relations Act ["PLRA"] 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
FAX
(301) 948-4286 •
(301) 590-0317
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Honorable Derick Berlage
Bill 10-00
June 2,2000
Page Two
Our law was the first collective bargaining law enacted in Montgomery County.
It includes 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.
EFFECTSBARGAllUNG
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 [NLRBJ 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 to 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 'terms and conditions of employment.'
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Honorable Derick Berlage
Bil11O-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 defming the frontier between what constitutes
"wages, hours, and other terms and conditions of employment, and what subjects lie
outside the duty to bargain .
It
. 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 rights" 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. denied,
455 U.S. 945 (1982):
Even with regard to reserved management rights, the Act authorizes collective
bargaining over the 'procedures which 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
§
33-1D7(a).
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Honorable Derick Berlage
Bill 10-00
June 2,2000
Page Four
In
Montgomery County Government v. MCGEO-UFCW 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 affirming 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 -to 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 llnion] has some control over the
[managerial] decision .... "
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 t9 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.
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Honorable Derick Berlage
Bill 10-00
June 2,2000
Page Five
LAW SHOULD BE CONSISTEI'iT
A problem with exclusions 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.
Moreover, 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.
~
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.
Part of the confusion has been the result of Contract Article 61
Directives and
Administrative Procedures.
That Article requires that n[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. n The Article further provides that
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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,
§
33-8l(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,
slhe 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 I, 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!
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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 simple: 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.
Dol
found many man-
.
agement, not FOP, deficiencies and the recently signed Agreement with
Dol
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.
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"
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
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