GO Item 2
June 24,2013
Worksession
MEMORANDUM
June 20,2013
TO:
Government Operations and Fiscal Policy Committee
FROM:
SUBJECT:
Robert
H.
Drummer,
Senior Legislative Attorney,
Worksession:
Bill 9-13, Collective Bargaining -Impasse - Arbitration Panel
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Bill 9-13, Collective Bargaining
Impasse - Arbitration Panel, sponsored by
Councilmember Andrews, was introduced on March 19. A public hearing was held on June 18.
Bill 9-13 would:
• establish an interest arbitration panel to resolve an impasse over a collective
bargaining agreement; and
• require an impasse arbitration hearing to be open to the public.
Background
Interest arbitration is a method of resolving disputes over the terms 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 §510A requires the same for fire fighters. 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), fire
fighters (Chapter 33, Article X), and other County employees (Chapter 33, Article VII).
All 3 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. There have been 20 impasses resolved by interest arbitration since
1988. Two involved fire fighters, 2 involved general County employees, and the other 16
involved the police. The arbitrator selected the final offer of the International Association of Fire
Fighters (IAFF) in both impasses with the fire fighters and selected the County offer in 1 impasse
with general County employees represented by the Municipal and County Government
Employees Organization (MCGEO) and selected MCGEO's offer in the other. The arbitrator
selected the FOP offer in 12 of the 16 impasses with the police.
1
The arbitrator selected the
I
A table showing the issues decided in each of the 20 arbitration awards since 1988 is attached.
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County offer over the FOP offer 3 times,2 and the County agreed to the FOP offer after the
arbitration hearing 1 time.
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. The Oklahoma law authorizes a city council to call a special
election and submit the 2 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.1
65
v.
City ofChoctaw,
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 Council enacted Expedited Bill 57-10 on December 14,2010 modifying the criteria
used by the arbitrator in resolving collective bargaining impasses with each County employee
union. Bill 57-10 required the arbitrator to first evaluate and give the highest priority to the
County's ability to pay for the last best offers of the union and the employer. The union
prevailed in each of the 3 arbitration hearings held in 2011 after Bill 57-10 was enacted.
All 3 County collective bargaining laws require the appointment of a professional labor
arbitrator mutually selected by the Executive and the union. Arbitrator fees are split evenly
between the parties. Professional labor arbitrators must avoid the appearance of favoring one
side or the other in order to continue to be selected for future business.
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 County collective bargaining laws require the labor professional jointly selected by
the parties to serve as both mediator and arbitrator. This dual role has the advantage and
disadvantage 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 made by a
mediator who ultimately will resolve an impasse as the arbitrator. However, this dual role
lessens the ability of a mediator to get the parties to speak freely during private sessions with the
mediator. Traditional mediation promotes the free flow of ideas between the parties, in part,
because the mediator has no authority to impose a resolution. 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, a mediator with no actual authority to
impose a resolution on either party is in a better position to help the parties negotiate a
settlement.
2
The FOP appealed 2 of the 3 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.
2
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Bill 9-13 would separate the role of mediator and arbitrator. The Bill would also
establish an arbitration panel consisting of 3 voting neutral public members, 1 non-voting union
representative, and 1 non-voting employer representative. The non-voting members would be
selected by the parties to the dispute. The Council would recommend 3 public members and 2
alternate public members. The Executive would appoint, subject to Council confirmation, each
of the 5 public members to a three-year term. Each public member must be a County resident
knowledgeable in fiscal matters who is currently unaffiliated with federal, state, or local
management or labor unions. A majority of the 3 public members on the arbitration panel must
vote for a decision resolving an impasse. The arbitration decision would be binding on the
Executive and the union. Those provisions in the final agreement that require an appropriation
of funds or legislation would continue to be subject to Council approval.
Public Hearing
Both speakers at the June 18 public hearing, Torrie Cooke, President of FOP Lodge 35
(© 19) and Jeffrey BuddIe, Vice-President of IAFF Local 1664 (©20-21) opposed the Bill. Each
of these County employee union officials argued that the current system works well and should
not be changed. Joan Fidler, on behalf of the Montgomery County Taxpayers League, sent in
written comments supporting the Bill. (©22)
Issues
1. Should the role of mediator and arbitrator be split between two individuals?
Under current law, the impasse neutral selected by the parties to mediate the dispute
becomes the neutral arbitrator if the impasse is not resolved during the mediation process. This
dual role is often referred to in academic literature as med-arb. A negotiated agreement is
usually preferred to an arbitration award in collective bargaining because the parties must
continue to work together. Med-arb could lead to fewer settlements in mediation and more
impasses resolved by arbitration due to the reluctance of the parties to speak freely in front of a
mediator who could also be the arbitrator. The County's experience has been mixed. Since 1988
there have been only 2 disputes between the Executive and the IAFF that were resolved by
arbitration and only 2 disputes between the Executive and MCGEO resolved by arbitration.
However, there have been 16 disputes between the Executive and the FOP resolved by
arbitration since 1988.
It
is difficult to explain these differing results, but it does indicate that the
impasse resolution process under the Police Labor Relations Law has not worked well.
The American Arbitration Association's "Guide to Drafting Dispute Resolution Clauses"
does not recommend med-arb for this reason. The Guide states at p. 38:
A clause may provide first for mediation under the AAA's mediation procedures.
If the mediation is unsuccessful, the mediator could be authorized to resolve the
dispute under the AAA's arbitration rules. This process, is sometimes referred to
as "Med-Arb." Except in unusual circumstances, a procedure whereby the same
individual who has been serving as a mediator becomes an arbitrator when the
mediation fails is not recommended, because it could inhibit the candor which
should characterize the mediation process andlor it could convey evidence, legal
points or settlement positions ex parte, improperly influencing the arbitrator.
3
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One of the mediator's most important tools is this lack of authority and the anticipated
confidentiality of all statements made to the mediator or in the mediator's presence. The
Maryland Court of Appeals adopted Rules on Alternative Dispute Resolution, including
standards of conduct for mediators, which mandate confidentiality of statements made during
mediation. Md. Rule 17-105 states:
Rule 17-105. Mediation confidentiality
(a)
Mediator.
Except as provided in sections (c) and (d) of this Rule, a
mediator and any person present or otherwise participating in the
mediation at the request of the mediator shall maintain the
confidentiality of all mediation communications and may not
disclose or be compelled to disclose mediation communications in
any judicial, administrative, or other proceeding.
Parties.
Except as provided in sections (c) and (d) of this Rule:
(1)
(b)
a party to a mediation and any person present or who
otherwise participates in a mediation at the request of a
party may not disclose or be compelled to disclose a
mediation communication in any judicial, administrative, or
other proceeding; and
the parties may enter into a written agreement to maintain
the confidentiality of mediation communications and to
require all persons who are present or who otherwise
participate in a mediation to join in that agreement.
(2)
(c)
Signed document.
A document signed by the parties that records
points of agreement expressed and adopted by the parties or that
constitutes an agreement reached by the parties as a result of
mediation is not confidential, unless the parties agree otherwise in
writing.
Permitted disclosures.
In addition to any disclosures required by
(d)
law, a mediator, a party, and a person who was present or who
otherwise participated in a mediation may disclose or report
mediation communications:
(1 )
to a potential victim or to the appropriate authorities to the
extent they reasonably believe necessary to help prevent
serious bodily harm or death to the potential victim;
when relevant to the assertion of or defense against
allegations of mediator misconduct or negligence; or
when relevant to a claim or defense that an agreement
arising out of a mediation should be rescinded because of
fraud, duress, or misrepresentation.
(2)
(3)
4
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The purpose of this confidentiality is to promote full and frank discussions with the
mediator without fear of those statements being used against the party if the matter goes to
arbitration or litigation. Med-arb does not permit these unrestrained conversations during
mediation. Each statement by a party in mediation under med-arb must be made after
considering the possibility that the mediator is also going to be the final judge if there is no
settlement. This disadvantage ofmed-arb has been recognized in some of the academic literature
discussing public sector interest arbitration.
3
Ira Jaffe, a long-time practitioner in this field,
provided an interesting answer to this issue during his recent interview by the GO Committee for
reappointment as the Permanent Umpire under the Police Labor Relations Law.
4
Mr. Jaffe
acknowledged this issue in a discussion of med-arb, but felt that he could make an arbitration
award without relying on any statements made by the parties at the mediation session. Of
course, that ability would resolve only part of the problem. The parties are unlikely to make
statements against interest in mediation before him when he is also the arbitrator.
The major advantage of med-arb is speed and efficiency. The arbitrator does not need to
"get up to speed" on the issues before issuing an arbitration award because he or she has already
heard the issues during the mediation. However, if the arbitrator cannot rely on the evidence
presented at the mediation sessions, then the parties will be required to present this evidence
again at the arbitration hearing, thereby reducing the speed and efficiency of the process.
T. Bert (Thomas Bertram) Lance, the Director of the Office of Management and Budget
in Jimmy Carter's 1977 administration was quoted in the newsletter of the US Chamber of
Commerce,
Nation's Business,
May 1977:
Bert Lance believes he can save Uncle Sam billions if he can get the government
to adopt a simple motto: "If it ain't broke, don't fix it." He explains: "That's the
trouble with government: Fixing things that aren't broken and not fixing things
that are broken."
While there is much merit in this quote, the 16 interest arbitration awards under the Police Labor
Relations Law since 1988 indicates that something is broken here. Although Bill 9-13 would
split the role of mediator and arbitrator under each County collective bargaining law, the
Committee may want to consider making this change only for the Police Labor Relations Law
based upon our history.
2.
Should the arbitration be conducted by a citizen panel instead of a professional labor
arbitrator?
The Bill would replace the professional mediator-arbitrator with a professional mediator
and a separate arbitration panel. The arbitration panel would have 3 voting members appointed
Blankley,
Keeping a Secret from Yourself! Confidentiality When the Same Neutral Serves Both as Mediator and
as Arbitrator in the Same Case,
63 Baylor
L.
Rev. 317 (2011); Blankenship,
Developing your ADR attitude: Med­
Arb, a template for adaptive ADR,
42
Tenn. B.J.
28 (2006).
3
4
As the Permanent Umpire, Mr. Jaffe would never be the impasse neutral for an interest dispute with the FOP.
However, he has done this work for other County bargaining units and in other jurisdictions in his 30 years as a
professional1abor neutral.
5
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by the Executive and confirmed by the Council for a 3-year term of office. Each public member
would serve without compensation and must be:
(1)
(2)
(3)
a resident of the County;
knowledgeable in fiscal matters; and
currently unaffiliated with federal, state or local government management
or a labor union that represents federal, state or local government
employees. (Lines 317-323 on ©13.)
The argument for using a professional labor arbitrator is that they are trained and
experienced in serving as an impartial neutral in labor disputes. Most professional labor
arbitrators work as neutrals full-time and do not engage in advocacy on behalf of labor unions or
management. Many are attorneys who started as legal advocates for labor unions or
management. They are selected by the parties and must maintain the perception of neutrality in
order to continue to receive business. In short, they are accountable to the parties. They are
specialized private judges hired by the parties to make factual determinations and resolve
disputes. The argument against using a professional labor arbitrator to resolve an impasse in
public sector collective bargaining is that they are not directly accountable to the taxpayers. The
union represents its members. The Executive represents the County government. As Mr. Jaffe
explained in his recent interview with the GO Committee, he assumes that management in the
public sector represents the residents of the jurisdiction when he serves as an arbitrator.
Baltimore County Model for Employees Other than Police or Fire
The Baltimore County Code had a different system for resolving disputes with employees
other than police or fire.
5
The Code required the appointment of a permanent arbitration panel
consisting of 5 members serving 4-year terms. Three members are appointed by the Council, 1
by the Executive, and 1 by the certified employee organizations. The members served 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.
According to George Gay, Baltimore County Labor Commissioner, none of the members
of the arbitration panel were professional labor arbitrators. Instead, they were experienced
business leaders. This advisory arbitration system was in effect for 10 years. The only time a
dispute was submitted to the panel was in 2007. The panel decided that the employees should
get no cost of living raise and the Executive accepted the decision.
The argument for replacing a professional labor arbitrator by a panel of public members
who reside in the County appointed by the Executive and the Council for a 3-year term of office
5
This system was recently amended, effective April 1, 2014, in favor of arbitration of a dispute on wages or pension
benefits before a professional labor arbitrator.
6
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is direct accountability to the taxpayers. This is similar to the role of a jury in civil and criminal
litigation in the Circuit Court. The public members of the arbitration panel would serve without
compensation; they would not rely on future arbitration business for their livelihood. Unpaid
public members serve as arbitrators under the County Code to resolve important disputes brought
to the Commission on Common Ownership Communities (Code §§ 10B-9) and the Commission
on Human Rights (Code §27-2).
One criticism of the current arbitration system is the County's lack of success. The
County has lost 15 of the 20 arbitrations since 1988. However, one must be cautious before
attributing these one-sided results to pro-union bias by the arbitrators. There are many other
factors that influence a particular decision, such as the evidence presented before the arbitrator
and the reasonableness of each party's final best offer. Although it is a small sample size, the
results appear to
be
one-sided. The cause is unknown.
3. Should the arbitration hearing be open to the public?
Under current law, the arbitration hearing is closed to the public. The Bill would open
these hearings to the public and the press. Almost all civil trials are open to the public. This
permits members of the public and the press to witness the trial and thereby promotes a fair
process. Opening an interest arbitration hearing to the public would increase the accountability
of the dispute resolution process to the taxpayers. News media reports of the hearing would
increase the public's understanding of the issues and the evidence presented. Although private
collective bargaining sessions and private mediation sessions promote the free and open
communications necessary to reach settlements, a private arbitration hearing is different. The
award from the arbitrator after a private hearing appears without any justification and often
becomes more difficult for the taxpayers to understand and support.
This packet contains:
Bill 9-13
Legislative Request Report
Table of Arbitration Decisions since 1988
Testimony ofTorrie Cooke
Testimony of Jeffrey BuddIe
Written testimony of Joan Fidler
Fiscal and Economic Impact Statement
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Bill No.
9-13
Concerning: Collective Bargaining
Impasse - Arbitration Panel
Revised: March 14.2013 Draft NO.4
Introduced:
March 19.2013
Expires:
September 19, 2014
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
_N!.!.o::::.:n..:.:e~
_ _ _ _ __
ChI
Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmember Andrews
AN
ACT to:
(1)
(2)
(3)
establish an interest arbitration panel to resolve an impasse over a collective
bargaining agreement;
require an impasse arbitration hearing to be open to the public; 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]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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BILL
No. 9-13
Sec. 1. Sections 33-81,33-108, and 33-153 are amended as follows:
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9
10
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33-81.
Impasse procedure.
*
(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.
(2)
Whenever an impasse has been reached, the dispute [shall] must
be submitted to the impasse neutral. The impasse neutral [shall]
must attempt to settle the dispute through mediation [by bringing]
with the parties [together voluntarily under such favorable
auspices as will tend to effectuate the settlement of the dispute].
12
13
(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 must certify the impasse for arbitration before an
arbitration panel established under Section 33-103A.
The
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arbitration panel must require each party to submit a final offer.'1
which must consist either of a complete draft of a proposed
collective bargaining agreement or a complete package proposal,
as the [impasse neutral] arbitration panel chooses.
If only
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complete package proposals are required, the [impasse neutral]
arbitration panel must require the parties to submit jointly a
memorandum of all items previously agreed upon.
(4)
The [impasse neutral] arbitration panel may, in the [impasse
neutral's] arbitration panel's discretion, require the parties to
submit evidence or make oral or written argument in support of
their proposals. The [impasse neutral may] arbitration panel must
hold a hearing open to the public for this purpose at a time, date
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BILL
No. 9-13
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and place selected by the [impasse neutral] arbitration panel.
[Said hearing must not be open to the public.]
(5)
On or before February 1, the [impasse neutral] arbitration panel
must select, as a whole, the more reasonable, in the [impasse
neutral's] arbitration panel's judgment, of the final offers
submitted by the parties.
(A)
The [impasse neutral] arbitration panel must first evaluate
and give the highest priority to the ability of the County to
pay for additional short-term and long-term expenditures
by considering:
(i)
the limits on the County's ability to raIse taxes
under State law and the County Charter;
(ii)
the added burden on County taxpayers, if any,
resulting from increases in revenues needed to fund
a final offer; and
(iii)
the County's ability to continue to provide the
current standard of all public services.
(B)
After evaluating the ability of the County to pay under
subparagraph (A), the [impasse neutral] arbitration panel
may only consider:
(i)
the interest and welfare of County taxpayers and
service recipients;
(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
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BILL
No.
9-13
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other
public
employers
In
the
Washington
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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] the County
(6)
The [impasse neutral] arbitration panel must:
(A)
not compromise or alter the final offer that [he or she
selects] it selects;
(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]
arbitration panel; and
(D)
consider all previously agreed on items integrated with the
specific disputed items to determine the single most
reasonable offer.
(7)
The offer selected by the [impasse neutral] arbitration panel,
integrated with the previously agreed upon items, [shall] must be
[deemed to 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] under subsection 33-80(g) [above]. The parties [shall]
must execute [such] the final agreement.
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No. 9-13 .
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(c)
An
impasse over a reopener matter 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)
If the parties agree m 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."
(2)
When the parties initiate collective bargaining under 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.
(3)
If, after bargaining in good faith, the parties are unable to reach
agreement on a reopener matter by the deadline specified in the
collective bargaining agreement, either party may declare an
Impasse.
(4)
If an impasse is declared under paragraph (3), 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 arbitration panel established under Section 33­
103A.
(5)
The [impasse neutral] arbitration panel must resolve the dispute
under the impasse procedure in subsection (b), except that:
(A)
(B)
the dates in that subsection do not apply;
each party must submit to the [impasse neutral] arbitration
panel a final offer on only the reopener matter; and
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BILL No. 9-13
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(C)
the [impasse neutral] arbitration panel must select the most
reasonable of the parties' final offers no later than 10 days
after the [impasse neutral] arbitration panel receives the
final offers.
*
33-108.
*
*
III
*
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Bargaining, impasse, and legislative procedures.
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*
(d)
*
which the employer and the
Before September 10 of any year
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
expenses of the [mediator/arbitrator] mediator must be shared equally
by the employer and the certified representative.
(e)
(1)
During the course of collective bargaining, either party may
declare
an
impasse
and
request
the
services
of the
[mediator/arbitrator] 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
detennination.
(2)
Any dispute, except a dispute involving the negotiability of a
bargaining
proposal,
must
be
submitted
to
the
[mediator/arbitrator] mediator whenever an impasse has been
reached,
or
as
provided
in
subsection
(e)(1).
The
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[mediator/arbitrator] mediator must attempt to resolve the
impasse
Qy
[engage in] mediation [by bringing the parties
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together voluntarily under such favorable circumstances as will
encourage settlement of the dispute].
(3)
If
the
[mediator/arbitrator]
mediator
fmds,
m
the
[mediator/arbitrator's] 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 arbitration
panel established under Section 33-1 03A.
(f)
(1)
If binding arbitration is invoked, the [mediator/arbitrator]
arbitration 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 proposal,
as the [mediator/arbitrator] arbitration panel directs.
complete
package
proposals
are
required,
If only
the
[mediator/arbitrator] arbitration panel must require the parties to
submit jointly a memorandum of all items previously agreed on.
(2)
The [mediator/arbitrator] arbitration panel may require the parties
to submit oral or written evidence and arguments
in
support of
their proposals. The [mediator/arbitrator may] arbitration panel
must hold a hearing open to the public for this purpose at a time,
date, and place selected by the [mediator/arbitrator] arbitration
paneL [This hearing must not be open to the public.]
(3)
On
or before February 15, the [mediator/arbitrator] arbitration
panel must select, as a whole, the more reasonable of the final
offers submitted by the parties.
The [mediator/arbitrator]
arbitration panel must not compromise or alter a final offer. The
[mediator/arbitrator] arbitration panel must not consider or
receive any argument or evidence related to the history of
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Bill No. 9-13
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169
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collective bargaining in the immediate dispute, including any
previous settlement offer not contained in the final offers.
However, the
[mediator/arbitrator]
arbitration 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] arbitration panel must first evaluate and give
the highest priority to the ability of the County to pay for
additional short-term and long-term expenditures by considering:
(A)
the limits on the County's ability to raise taxes under State
law and the County Charter;
(B)
the added burden on County taxpayers, if any, resulting
from increases in revenues needed to fund a final offer;
and
(C)
the County's ability to continue to provide the current
standard of all public services.
(5)
After evaluating the ability of the County to pay under paragraph
(4), the [mediator/arbitrator] arbitration panel may only consider:
(A)
(B)
the interest and welfare of County taxpayers and service
recipients;
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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BILL
No. 9-13
195
196
197
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200
201
202
203
204
205
206
207
208
209
210
(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]
the County.
(6)
The offer selected by the [mediator/arbitrator] arbitration 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.
211
212
213
*
(f)
When an impasse is reached, the parties must submit the dispute to the
impasse neutral. The impasse neutral must attempt to resolve the
dispute
Qy
mediation [by bringing the parties together voluntarily
under conditions that will tend to bring about a settlement of the
dispute].
214
215
216
217
218
219
220
221
(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 arbitration panel established under Section 33­
103A. The arbitration panel must require the parties to jointly submit
all items previously agreed on, and each party to submit a final offer
consisting of proposals
no~~eed
222
upon. Neither party may change
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BILL No.
9-13
223
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232
233
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235
236
237
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240
241
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243
244
245
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250
any proposal after it is submitted to the [impasse neutral] arbitration
panel as a final offer, except to withdraw a proposal on which the
parties have agreed.
(h)
The [impasse neutral] arbitration panel may require the parties to
submit evidence or present oral or written arguments in support of
their proposals. The [impasse neutral may] arbitration panel must hold
a hearing open to the public at a time, date, and place selected by the
[impasse neutral] arbitration panel. [The hearing must not be open to
the public.]
(i)
On or before February 1, unless that date is extended by written
agreement of the parties, the [impasse neutral] arbitration panel must
select the final offer that, as a whole, the [impasse neutral] arbitration
panel judges to be the more reasonable.
(1)
In determining which final offer is the more reasonable, the
[impasse neutral] arbitration panel must first evaluate and give
the highest priority to the ability of the County to pay for
additional
considering:
(A)
(B)
the limits on the County's ability to raise taxes under
State law and the County Charter;
the added burden on County taxpayers, if any, resulting
from increases in revenues needed to fund a final offer;
and
(C)
the County's ability to continue to provide the current
standard of all public services.
short-term
and
long-term
expenditures
by
(2)
After evaluating the ability of the County to pay under
paragraph (1), the [impasse neutral] arbitration panel may only
consider:
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BILL
No. 9-13
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
274
275
276
277
278
(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]
the County.
G)
The [impasse neutral] arbitration 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] arbitration panel must not consider
or receive any evidence or argument concerning offers of settlement
not contained in the offers submitted to the [impasse neutral]
arbitration panel, or any other infonnation concerning the collective
bargaining leading to impasse. The [impasse neutral] arbitration panel
must neither compromise nor alter the final offer that [he or she] it
selects.
(k)
The final offer selected by the [impasse neutral] arbitration 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 of an agreement voluntarily entered into and ratified
under subsection (c). The parties must execute that agreement.
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BILL NO. 9-13
279
280
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282
283
284
285
286
287
288
289
290
291
292
(1)
In each proposed annual operating budget, the County Executive must
describe any collective bargaining agreement or amendment to an
agreement that is scheduled to take effect in the next fiscal year and
estimate the cost of implementing that agreement.
The annual
operating budget must include sufficient funds to pay for the items in
the parties' final agreement. The employer must expressly identify to
the Council by April 1, unless extenuating circumstances require a
later date, all terms and conditions in the agreement that:
(1)
(2)
(3)
require an appropriation of funds..;.[, or]
are inconsistent with any County law or regulation..;.[, or]
require the enactment or adoption of any County law or
regulation..;.[,] or
(4)
which have or may have a present or future fiscal impact.
If
a later submission is necessary, the employer must specify the
293
294
295
submission date and the reasons for delay to the Council President by
April 1. The employer must make a good faith effort to have the
Council take action to implement all terms and conditions in the
parties' final agreement.
296
297
298
299
*
33-103A.
Arbitration Panel.
*
*
Sec. 2. Section 33-103A is added as follows:
300
301
302
303
304
305
306
ill
Purpose.
An
arbitration panel may conduct
S!
hearing and resolve an
Impasse in collective bargaining between
S!
certified employee
representative and the employer under Sections 33-81, 33-108, and 33­
153.
(Q)
Public members.
The Executive must appoint, subject to Council
confirmation,
1
neutral public arbitration panel members recommended
Qy
the Council and
~
neutral public alternate members recommended
Qy
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BILL
No.
9-13
307
308
309
310
311
312
313
314
315
316
317
318
319
320
321
322
323
324
325
326
327
328
329
330
331
332
the Council for staggered 3-year tenus. The Executive must designate
one of the public members to serve as Chair and one as Vice-Chair.
To implement the staggered tenus, the Executive must appoint the Chair
and the Vice-Chair to !! 3-year tenu, the third public member to !! one­
year tenu, and the two alternate public members to !! 2-year tenu. After
these initial appointments, the Executive must appoint each public
member to !! 3-year tenu, except any public member appointed to fill !!
vacancy. If!! vacancy is created Qy !! public member's death, disability,
resignation, non-perfonuance of
~
or other cause, the Executive
must appoint, subject to Council confrrmation, !! public member
recommended Qy the Council to complete the member's tenu.
public member must be:
Each
ill
ill
ill
!! resident of the County;
knowledgeable in fiscal matters; and
currently unaffiliated with federal, state or local government
management or!! labor union that represents federal, state or local
government employees.
Each public member must file !! limited public financial disclosure
statement under Section 19A-17(a)(6).
ill
Composition.
An
arbitration panel contains
1
voting
members and
2
non-voting members.
In addition to the
1
voting public members
appointed Qy the Executive, one non-voting member must be selected
Qy the certified employee representative involved in the impasse and
one non-voting member must be selected Qy the employer. If!! public
member is unavailable to serve on !! panel, the Chair of the Panel must
designate an alternate public member to the panel on !! rotating basis.
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BILL No. 9-13
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
@
Term.
An arbitration panel selected under subsection
W
serves until the
Council takes final action on the collective bargaining agreement at
Impasse.
~
Compensation.
Each arbitration panel member must serve without
~
compensation from any source for service rendered as
panel member,
except that an active employee member may receive administrative
leave to serve on
~
panel.
The County must reimburse each panel
member for any expense required to serve on
~
panel. A panel member
must not receive reimbursement for expenses from any other source.
ill
Procedure.
The Chair must preside at any hearing. If the Chair is
~
unavailable for
panel, the Vice-Chair must preside. If both the Chair
and the Vice-Chair are unavailable, the
J
public members must select
~
Chair. A majority of the
resolving an impasse.
Approved:
J
public members must vote for
~
decision
348
Nancy Navarro, President, County Council
Date
349
Approved:
350
Isiah Leggett, County Executive
Date
351
This is a correct copy o/Council action.
352
Linda M. Lauer, Clerk ofthe Council
Date
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LEGISLATIVE REQUEST REPORT
Bill 9-13
Collective Bargaining -Impasse
-
Arbitration Panel
DESCRIPTION:
Bill
9-13 would establish an interest arbitration panel to resolve an
impasse, require an impasse arbitration hearing to be open to the
public, and generally amend County collective bargaining laws.
The current system of permitting the parties to jointly select a private
labor arbitrator to serve as both a mediator and arbitrator does not
provide sufficient accountability to the County taxpayers.
To increase the public accountability of the interest arbitration
system.
Human Resources, County Attorney
To be requested.
To be requested.
To be requested.
To be researched.
Robert H. Drummer, 240-777-7895
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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Interest Arbitration Decisions Since 1988
#
1
Date
2/1911988
Union
FOP
Arbit.
aWl
Fishgold
I
2
2/25/1991
FOP
Bloch
3
4
2/12/1992
2/19/1992
FOP
FOP
Kennelly
Bloch
5
2/23/1993
FOP
Porter
Issues
1. Indemnification of County for dues
checkoff.
2. 1 day ofleave for occupational stress.
3. County - narrow non-discrimination
clause.
4. FOP - add traffic officers to PPV
program.
5.
FOP
reopener for disability
retirement.
6.
Differential pay for specialized
officers.
7. Clothing allowance.
8. Shift differential pay.
9. COLA (5.5% v. 3%)
1. Maintenance of standards provision.
2. Alcohol/drug policy.
3. COLA (6.2% v. 0%)
4. Retirement Incentive Program (RIP)
1. FOP ­ add 1 additional step
2. COLA (me-too up to 2% v. 0%)
1. Furlough procedures.
2. FOP - 4 days of compensatory leave for
furlough.
3. Reduce pay, 32 hours of annual leave
to be used in 2 years.
1. COLA (3% v. 1.5%)
2. FOP - RIP.
3. Increase clothing allowance.
Award
FOP
County
FOP
FOP
FOP
6
3/23/1994
FOP
17
,8
9
4/2511994
211411995
6/12/1998
FOP
FOP
FOP
4. Increase pay differential.
1. Health insurance policy.
Bloch
2. COLA (2.7% v. 2.5%).
3. Disability leave - donations of sick
leave .
1. Eligibility for RIP enacted by CounciL
Fasser
S. Strongin 1. COLA (2.9% v. 1.5%).
2. Partial SCDR
(662/3%
v. variable).
1. FOP - change disability procedures.
Oldham
2. FOP County option - DROP.
3. FOP - increase COLA for retirees.
4. FOP - increase multiplier for over 65.
5. FOP - increase employee retirement
contribution.
FOP
FOP
FOP
FOP
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10
2/26/2001
11
FOP
FOP
S. Strongin
Sharnoff
1.
COLA ($2800
+
$600 v. $2500).
'FOP
County'
2/24/2003
, 12
3/19/2004
IAFF
LaRue
13
3/15/2007
FOP
Bloch
Bloch
Bloch
Fishgold
14
11/29/2007
FOP
15
518/2008
FOP
16
3/2010
FOP
17
3/22/2010
MCGEO Vaughn
18
2/0112011
IAFF
Vaughn
19
2118/2011
FOP
Barrett
2. FOP - shift differential re-opener.
1. FOP - 1 additional personal leave day.
2. FOP - compressed schedule for special
assignment.
3.
FOP - increase PPV for canine
officers.
4. COLA (3.5% v. 2%).
Selection of attorneys for criminal
i
5.
offense.
6. County - single issue arbitration for
changes to directives.
I.IAFF Increase the multiplier for
calculating pension for integrated plan
after reaching Social Security age.
1. FOP - Police Hearing Board decision to
bind Chief on discipline.
County agreed to FOP offer.
1. Implementation of mobile video
system.
1. FYl1 service and longevity increments
(3.5% v. 0%).
2. Reinstitute tuition assistance for FYl1.
1. RIF procedures and limits.
2. RIP savings to reduce RIFs in
bargaining unit.
1. Health, prescription drug, dental,
vision, life, and disability insurance
premium splits.
2. Prescription drug and life insurance
benefits.
3. Employee retirement contributions.
4. Critical Incident Stress Management
Tearn, Out of class work, Compensatory
time
1.
Service increment - (3.5% v. 0%)
2. Health, prescription drug, dental,
vision, life, and disability insurance
premium splits.
3. Prescription drug and life insurance
benefits.
4. Employee retirement contributions.
5. Tuition Assistance
I
IAFF
FOP
Settled
Count/:
FOP"
County
IAFF
FOP
The FOP appealed decision and Circuit Court held that item 6 was invalid under Police Collective Bargaining Law.
2
The FOP appealed the decision and Circuit Court upheld the arbitrator's decision.
3
The Council rejected the arbitrator's award.
I
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20
3/28/2011
MCGEO LaRue
1. Health, prescription drug, dental,
vision, life, and disability insurance
premium splits.
2. Prescription drug and life insurance
benefits.
3. Employee retirement contributions.
4. Multi-lingual pay, court time,
attendance incentive, and classification
studies
MCGEO
F:\LAw\BILLS\1309 Collective Bargaining - Interest Arbitration-Impasse Panel\lnterest Arbitration Decisions Since 1988 Updated.Doc
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lVIontgomery County Lodge 35, Inc.
18512 Office Park Drive
Montgomery Village, MD 20886
301-948-4286
www.foplodge35.com
{
Interest arbitrators currently are selected either through the procedures of the independent
American Arbitration Association or through
mutual
agreement of the union and the
county executive. Independent, neutral, professional arbitrators, skilled in issues of labor,
are the norm and it is an affront to fairness and a sham to deviate from existing law.
The impasse procedure works and is effective. To suggest that arbitrators the parties have
used have a bias against the county because the county receives less awards than the
employee representatives is absurd. Arbitrators selected by the parties are governed by
strict standards set forth by the American Arbitration Association, National Academy of
Arbitrators, and the Federal Mediation and Conciliation Service.
There is absolutely no evidence that interest arbitrators the parties have used are biased
toward or against either party. Arbitrators go on the basis of facts presented to them. This
bill is based on a
subjective
view and is structured to create a process that unfairly gives
complete and total advantage to the county.
I want to remind the committee of the change to the impasse procedure the council made
several years ago, changing the criteria for the neutral arbitrator to consider, giving
greater preference to the county, putting employee representatives at a disadvantage from
the start of impasse.
This bill is obviously designed to take impasse resolution
out
of the hands of
independent, neutral arbitrators and put it in a forum where the deck is stacked against
fairness, impartiality, and neutrality which is undemocratic at its core.
There is simply no evidence the neutral arbitrators selected by both parties have a bias.
Because the county wins most tort claims it defends in state and federal court, does that
mean the courts and judges are biased in favor of government?
It
most certainly does not.
In our impasse procedure, the neutral party arbitrator examines the facts that are placed
on record, applies those facts to the impasse procedure (Sec. 33-81), and then objectively
selects the most reasonable offer within the constraint of the law.
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Montgomery County Career
Fire Fighters Association
LOCAL 1664
Montgomery County Council, June 18, 2013 Public Hearing: Bill 9-13
Written Testimony of the Montgomery County Career Fire Fighters Association
>.9ohn J. Sparks, President
The MCCFFA is strongly opposed to Bill 9-13, which would separate the role of mediator and
arbitrator in the process for resolving impasses in labor contract negotiations, and would also
establish an arbitration panel that gives three inexperienced, uninformed "public" members the
authority to set the terms of collective bargaining agreements. The purported reasoning
behind both parts of this bill is not well thought out, and is, in fact, seriously flawed.
Turning first to the provisions of the bill that would preclude an individual from serving both as
the mediator and an arbitrator in the same impasse proceeding, we note that the Council staff
memorandum on the bill indicates a beliefthat having the same person act as both mediator
and arbitrator "lessens the ability of a mediator to get the parties to speak freely during private
sessions." We can only conclude that such statement is written by a council staff member who
has had little or no actual experience in impasse resolution proceedings. From many years of
experience in actual proceedings involving this County and multiple County Executives that the
exact opposite of what has been stated in the memorandum is actually true.
Engaging a mediator in private talks who a party knows might subsequently set the terms of the
collective bargaining agreement actually creates an
incentive
for the party to speak openly with
the mediator because the party then has an opportunity early on in the process to try and
frame the issues for the ultimate decision-maker as to the strengths of the party's position. On
the other hand, in talking to a mediator who has no decision-making role in a subsequent
arbitration proceeding, a party is unlikely to "lay its cards on the table" and to make meaningful
compromises. What is more likely in that scenario is that the party would only attempt to
reach resolutions on minor issues, and instead take its chances on winning the major issues in
arbitration.
Turning to the second aspect of the bill which would replace the single arbitrator with an
arbitration panel comprised of three voting public members and two non-voting partisan
members, it is simply not true this proposal presents a better method for resolving bargaining
impasses than the current process.
--------------------------------------------------@V
932 Hunger/ora DrivE', Suite 33A. Rac'Z'Ii:,e, rvlD 20850·1713' Telephone; (301) 762·6611 • FAX; (301) 762·7390 •
vVebsita;
www.iaf
f
!ocal1664,org
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It is overly simplistic to conclude from win-loss statistics over the years that the current process
is in need of reform. In undertaking a more meaningful analysis of the cases, two conclusions
become readily apparent. First, most of the arbitrations have involved the FOP; the other two
unions have gone to arbitration only three times in the many years since the process has been
in place -and the County prevailed in one of those cases. Second, examining the details of
those cases reveals that County Executives have proceeded to arbitration with extreme and
unjustifiable proposals. A prime example is the County Executive's proposals that were
presented in the 2011 arbitrations involving all three County Government unions in which he
argued for cut-backs in employee benefits that even the Council concluded went too far when it
adopted the County's FY 2012 budget. Another example is the County Executive's proposal
that year to deny health insurance coverage to fire fighters who were forced to retire because
of service-connected disabilities. No arbitrator or any other reasonable person would have
chosen the County Executive's Last Best Final Offer with that proposal included in the package.
The Council should also carefully consider the fact the current method of resolving bargaining
impasses involves
professional labor arbitrators
who have many years of experience in this field
and who have adjudicated hundreds of cases. The fact that in order for an individual to be
selected for an impasse proceeding he/she has to be agreed to by both the County Executive
and the Union means that the arbitrator is mutually respected by the parties, and at the same
time negates any suggestion that an arbitrator has either a pro-employer or pro-union bias.
Moreover, the Council sets the specific and detailed criteria that the arbitrators must use in
reaching their decisions, and the arbitrators must demonstrate that they have adhered to those
criteria in writing their decisions or they will be "blacklisted" in the future not only in this
jurisdiction but likely others as well.
Finally, we note that the only substantive qualification set forth in the bill for an individual to be
appointed to an arbitration panel is that he/she has knowledge about fiscal matters. The
individual is not required to have knowledge of or experience with local government budgets or
labor relations matters. Individuals who have no experience in the specialized field of labor
relations cannot possibly be expected to fully comprehend all of the issues and ramifications
associated with the proposals presented in an {interest arbitration' (which includes proposals
beyond just fiscal issues, e.g.; working conditions, employee health and safety, etc.).
For the reasons stated herein, we conclude there is no need to change the existing impasse
resolution procedures, and even if the Council were to consider doing so, the structure
proposed in Bill 9-13 is certainly provides no improvement upon the current system that has
existed for years.
2
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Page 1 of 1
Drummer, Bob
From:
Sent:
Joan Fidler [joan_fidler@yahoo.com]
Wednesday, June 19, 2013 5:00 PM
Mandel-Trupp, Lisa
Drummer, Bob
To:
Cc:
Subject:
Fw:
Bill
9-13
FYI and a bit hasty.
----- Forwarded Message ----­
From:
Joan Fidler <joan_fidler@yahoo.com>
To:
"Councilmember.Navarro@montgomerycountymd.gov"
<Councilmember.Navarro@montgomerycountymd.gov>
Sent:
Wednesday. June 19,20134:55 PM
Subject:
Bill 9-13
Dear President Navarro,
The Montgomery County TU».'}Y.lyers League would like to convey its position to you on Bill 9-13, Collective Bargaining - Impasse - Arbitration Panel. We support
the bill.
We arc not ugain,;t collective bargaining, but we are extremely dismayed as to how arbitration in the last
20
"impasses" has redounded in favor of the unions
14
time;. 1his el'traordinarily high number of decisions in favor of union positions begs the question: Is the system weighted against the ta.'payer?
Where is the accountability to the public? Why is there no «'prescntation by taxpayers On an arbitration panel? All taxpayers live in the county; all members
represented by unions do not. Yet they receive benefits for which the ta"payer is on the hook. We arc not necessarily for a residency requirement but we are for
fairness and c'quity. Why arc taxpayers excluded from representation?
In the current system, the labor arbitrator on the impasse pand acts as both mediator and arbitrator. Furthermore, this mediator-arbitrator is accountable to the
union and the county representative but not to the ta».l'ayer, In a matter
as
fiscally serious as pay and benefits which accounts for
SO",,,
of the operating budget,
the taxpayer is excluded. Not so in September and December when property taxes come due.
'The Montgomery County Taxpayers I.caguc supports the separation of the mediator and arbitrator roles, We support the creation of an arbitration panel. We
support rCl'resentation on the panel to include public members, We support a majority of the
3
public members on the panel vote for decisions invoh-ing an
impa.<sc. W c support that the arbitration decision be binding on the County Executive and the union.
'Ihe County Council speah often of fairness and equity, We applaud you for that. The taxpayers of Montgomery County deserve no less,
Sincerely,
Joan
Fidler
President
Montgomery County Taxpayers League
6119/2013
@
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/-1
OFFiCE OF THE COUNTY EXECUTIVE
ROCKVILLE. MARYLAND 20850
IS1ah
Leggett
COUJ'/ty
Executive
072407
MEMORANDUM
April
30, 2013
TO:
Nancy Navarro, President County Council
O
-
FROM:
SUBJECT:
jennifer Ao Hughes, D
Joseph F. Beach.
Dire2~~~ent
ofF
-~fflCe OfM~t
and Budget
Council Bill
9-13,
CoJlective Bargaining - Impasse ­ Arbitration Panel
Please find attached the fiscal and economic impact statements for the above-referenced
legislation.
JAH:a2a
c: Kathleen Boucher, Assistant Chief Administrative Officer
Lisa Austin, Offices ofthe County Executive
Joy Nurmi, Special Assistant to the County Executive
Patrick Lacefield, Director. Public Information Office
Joseph F. Beach, Director. Department ofFinance
Michael Coveyou, Department of Finance
Joseph A. Adler. Director. Office of Human Resources
Sarah Cook, Office of Human Resources
Lori
O'Brien, Office of Management and Budget
Ayo Apollon, Office of Management and Budget
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Fiscal Impact Statement
Council Bill 9
-13
Collective Bargaining -Impasse - Arbitration Panel
1. Legislative Summary.
This legislation would:
• separate the role ofmediator and arbitrator;
• establish an arbitration panel consisting of 3 voting neutral public, 1 non-voting union
representative, and 1 non·voting employer representative; and
• open the impasse arbitration hearing to the public.
A majority of the 3 public members on the arbitration panel must vote for a decision
resolving an impasse and the decision would be binding on the County Executive and the
union. Any necessary appropriation offunds would continue to be subject to Council
approval.
2.
An
estimate of changes in County revenues and expenditures regardless of whether
the revenues or expenditures are assumed
in
the recommended or approved budget.
Includes source of information, assumptions, and methodologies used.
• The County will incur lower costs related to an arbitration decision because
it
will not
be compensating an impasse neutral for arbitration services. During the last two
rounds of mediation/arbitration, those charges have ranged from approximately $750
to $8,000. These charges
vary
based on the length of an arbitration hearing, the per
diem charge ofthe neutral, and the complexity ofthe issues. If the parties reach a
settlement agreement, there are usually no charges for an arbitrator, with the
exception of a cancellation fee.
• The County
will
incur new costs for expenses required for each panel member to
serve on the panel.
If
a panel member is an active employee, there may
be
a cost to
the County to provide backfill for the County work that would normally be done by
that member. These expenses are indeterminate at this time.
3. Revenue and expenditure estimates covering at least the next 6 fiscal years.
The number and frequency of interest negotiations and subsequent impasse resolution
processes are indeterminate at this time.
In
the past
three
years, the County
has
negotiated with the Fraternal Order ofPolice (FOP), International Association ofFire
Fighters
(IAFF),
and Municipal and County Government Employees Organization
(MCGEO) each year. It
has
gone to arbitration for 6 of those negotiations. Prior to that,
negotiations were staggered and usually happened roughly every 3 years for each ofthe
unions. Arbitrations were not as frequent.
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During FY15, the County will
be
in negotiations with the IAFF and MCGEO for
economic reopeners to cover FY16 and then the following year for term negotiations.
Also during FY15, the County and the FOP
will
conduct term negotiations for the
contract that will begin
in
FY16; in FY14 term negotiations will be conducted with the
Montgomery County Volunteer Fire Rescue Association for the contract that will begin
in
FY15. lfnegotiations follow the same 3-year pattern. as was usual before the economic
downturn, between FY14 and FY19 there will be 10 rounds of negotiations. Savings
from arbitrator charges are estimated
to
range from $0 (no resulting arbitrations)
to
$80,000
(all
resulting in arbitrations), offset by reimbursed expenditures to the panel.
4.
An
actuarial analysis through the entire amortization period for each bill that would
affect retiree pension or group insurance costs.
Not applicable.
5. Later actions that may affect future revenue and expenditures
if
the bill authorizes
future spending.
Not applicable.
6. An estimate of the staff time needed to implement the bill.
The
staff
time needed to implement this bill is indeterminate at this time, but is not
expected to
be
significant Staff time will be needed to select and maintain the
list
of 5
public panel members (3 voting members and 2 altemates).
7.
An
explanation of how the addition of new staff responsibilities would affect other
duties.
None.
8. An estimate of costs when an additional appropriation
is
needed.
Not applicable.
9. A description of any variable that could affect revenue and eost estimates.
See response to 2 and 3 above.
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10. Ranges of revenue or expenditures that are uncertain or difficult to project.
See response to 2 and 3 above.
11.
If
a bill
is
likely to have no fiscal impact, why that is the ease.
Not applicable.
12. Other
{'lSeal
impacts or comments.
Not applicable.
13. The following contributed
to
and concurred with this analysis:
Lori O'Brien, Office ofManagement and Budget; and
Sarah
Cook, Office of
Human Resources.
Date
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Economic Impact Statement
Bill 9-13, Collective Bargaining - Impasse - Arbitration Panel
Background:
This legislation would:
• Establish an interest arbitration panel to resolve an impasse over a collective
bargaining agreement, and
• Require an impasse arbitration hearing to be open to the public
1.
The sources of
information~
assumptions, and methodologies used.
Not applicable
2. A description of any variable that could affect the economic impact estimates.
Not applicable
3. The Bill's positive or negative effect,
if
any on
employment~
spending, saving,
investment, incomes, and property values
in
the County.
Bill 9-13 would separate the role ofmediator and arbitrator during the collective
bargaining process. EssentiallY1 the previous role of an arbitrator, who is a labor
professional arbitrator selected by the County Executive and the union, would serve
as both mediator and arbitrator. The bill would separate those roles and create an
arbitration panel consisting of three members recommended and confirmed by the
County Council and appointed by
the
County Executive. Essentially the Bill amends
the collective bargaining process and would not have a direct effect on the County's
employment, spending1 saving, investment, incomes, and property values.
4. H a Bill
is
likely to have no economic impact, why is that the case?
The Bill
is
likely to have no economic impact with reasons stated
in
paragraph 3.
5. The following contributed to and concurred with this analysis: David Platt and
Mike Coveyou, Finance;
F.
each,
Director
Department of Finance
J
se~
Page
I
ofl