Agenda Item 3A
June 21, 2016
Introduction
MEMORANDUM
June 17,2016
TO:
FROM:
County Council
Robert H. Drummer, Senior Legislative
AttomeyRfij
SUBJECT:
Introduction:
Expedited Bi1l24-16, Collective Bargaining - Impasse Procedures
- Amendments
Expedited Bill 24-16, Collective Bargaining - Impasse Procedures - Amendments,
sponsored by Lead Sponsor Council President Floreen and Co-Sponsor Rice, is scheduled to be
introduced on June 21,2016. A public hearing is tentatively scheduled for July 12 at 7:30 p.m.
Background
The County enacted 3 separate collective bargaining laws at different times. The first law
enacted was the Police Labor Relations Law. The law governing general County employees was
enacted second, and the law governing fire and rescue employees was enacted last. The
amendments would make similar changes in each law. The lead sponsor, Council President
Floreen, explained these changes in a June 14 memorandum at ©28-30. The goal of this Bill is to
create a system that encourages the Executive and the union to negotiate sustainable collective
bargaining agreements that can be approved by the Council without resorting to interest arbitration.
Bill 24-16 would amend these laws in the following 6 areas:
1.
Transparency
-
The Bill would:
(a)
(b)
require public disclosure of each party's initial bargaining position on all
provisions; and
require that any evidentiary hearing before the arbitration panel be open to
the public.
The purpose of these amendments is to make the collective bargaining process, which
results in wages and benefits that consumes the overwhelming majority of the County
operating budget, more open to the public.
, 2.
Time for negotiation
-
The Bill would give the union and the Executive an extra
2 weeks by requiring negotiations to begin on October 15 instead of November 1.
Employer rights
-
Employer or management rights are those topics that are not
subject to collective bargaining. The Police Labor Relations Law contains 10 listed
employer rights. Each of the other 2 collective bargaining laws has 19 employer
3.
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rights. The Bill would make the list the same in each law by adding the additional
9 employer rights to the Police Labor Relations Law. In addition, the Bill would
clarify that any subject that is not expressly identified as a mandatory subject of
bargaining is not subject to bargaining as an employer right.
4.
Selection of Labor Relations Administrator (LRA) - The LRA (or umpire under
the Police Labor Relations Law) serves as a public official responsible for deciding
if either the Executive or the union has violated the collective bargaining law. The
LRA conducts evidentiary hearings and issues decisions that are subject to appeal
on the record in the Circuit Court as a decision of an administrative agency.
Although the LRA is appointed by the Executive for a 5-year term of office, subject
to Council confirmation, each law gives the union certain rights to help select this
public official. The union representing police officers has the right to veto the re­
appointment of the LRA. Under the other 2 laws, the Executive must appoint the
LRA from a list that is agreed upon by the Chief Administrative Officer and the
union. The Bill would repeal the right of the union to help choose the LRA and
leave it to the elected Executive and Councilmembers in the same manner that other
County public officials are appointed. The Bill would also change the
qualifications for the LRA from a person with experience as a neutral party in labor
relations to a person who is experienced conducting adjudicatory hearings, such as
a retired judge. Due in part to Maryland's mandatory retirement policy for its
judges, many retired judges with a wealth of experience in deciding cases based
upon the evidence and the relevant law continue to work as mediators and
arbitrators.
Mediation - Each law requires one person to serve as both the mediator and the
arbitrator. While this "med-arb" is efficient because the arbitrator is already
familiar with the disputed issues before the arbitration hearing, it does not permit
the mediator to serve the traditional role of a mediator. A traditional mediator has
no power to impose a solution to the parties.. The parties are then free to confide
both the strengths and weaknesses in their positions in private with the mediator.
The parties are generally reluctant to do this with a mediator who is also serving as
the arbitrator who can impose a final decision on the parties.
Arbitration - Each law provides for final offer by package arbitration before a
single neutral labor arbitrator who also served as the mediator. Under final offer
by package, each party must submit a final offer on each disputed item to the
arbitrator. The arbitrator must select the complete final offer package submitted by
one ofthe parties without compromise. The result is a clear winner and loser. The
Bill would make 2 changes to this process:
(a)
The Bill would create a 3-person arbitration panel. The Executive would
select 1 member, the union would select 1 member, and the parties would
jointly agree on a 3
rd
neutral member, who must be -a retired judge. If the
parties were unable to agree, they would be required to select a retired judge
from a panel of 5 pre-selected by the Council by alternate strikes with the
union going first.
5.
6.
2
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(b)
The Bill would also amend the criteria for the arbitration panel to consider
in making its decision.
In
2010, the Council enacted Bill 57-10, which
required the arbitrator to consider first the ability ofthe County to pay for a
party's offer before looking at traditional comparisons. The County
Attorney's Office suggested amendments to strengthen these criteria which
were not enacted by the Council in 2010. Bill 24-16 would amend the
criteria for the arbitration panel to consider consistent with the County
Attorney's suggested language in 2010.
This packet contains:
Expedited Bill 24-16
Legislative Request Report
June 14 Memo from Council President Floreen
1
27
28
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Expedited Bill No.
:::;;24;!...-1.l..::6~
_ _ __
Concerning: Collective
Bargaining
Impasse Procedures - Amendments
Revised: June 15, 2016 Draft No .
.JL
Introduced:
June 21, 2016
Expires:
December 21, 2017
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ __
Sunset Date:
_N!...:.:o~n=e
_ _ _ _ __
Ch.
Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: Council President Floreen
Co-Sponsor: Councilmember Rice
AN EXPEDITED ACT
to:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
increasing the time for collective bargaining;
modifYing the scope of collective bargaining;
modifYing the selection procedure and qualifications for labor relations adininistrator
and permanent mnpire;
require public disclosure ofeach party's initial bargaining position on major economic
proVISIOns;
separating the role ofmediator and arbitrator in resolving a bargaining impasse;
establishing an arbitration panel to serve as arbitrator;
requiring the evid{mtiary hearing before the arbitration panel to be open to the
public;
modifYing the criteria for an arbitration panel to consider; and
generally amending the collective bargaining laws for County employees.
(8)
(9)
By amending
Montgomery County Code
Chapter 33, Personnel and Human Resources
Sections 33-77,33-80,33-81,33-103,33-107,33-108,33-149,33-152, and 33-153
By adding
Montgomery County Code
Chapter 33, Personnel and Human Resources
Section 33-1 03A
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface bracketsD
* * *
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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ExPEDITED BILL
No. 24-16
1
Sec. 1. Sections 33-77, 33-80,33-81,33-103,33-107,33-108,33-149,33­
152, and 33-153 are amended as follows:
33-77. Permanent umpire.
(
a)
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3
4
There is hereby created the position ofpermanent umpire, so as to provide
for the effective implementation and administration ofsections 33-79 and
33-82 ofthis article concerning selection, certification and decertification
procedures and prohibited practices. The permanent umpire [shall] must
exercise the following powers and perform the following duties and
functions:
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(1)
Adopt regulations under method
(l)
of section 2A-15 ofthis Code,
for the implementation and administration of sections 33-79 and
33-82 as are consistent with this article;
(2) Request from the employer or any employee organization, and the
employer or such organization may at its discretion provide, such
relevant assistance, service and data as will enable the permanent
umpire to properly carry out his functions;
(3) Hold hearings and make inquiries, administer oaths and
affirmations, examine witnesses and documents, take testimony
and receive evidence, and compel by issuance of subpoenas the
attendance ofwitnesses and the production ofrelevant documents;
(4) Hold and conduct elections for certification or decertification
pursuant to the provisions ofthis article and issue said certification
or decertification;
(5) Investigate and attempt to resolve or settle,
as
provided in this
article, charges ofengaging in prohibited practices; however, ifthe
employer and a certified representative have negotiated a valid
grievance procedure, the permanent umpire must defer to that
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EXPEDITED BILL
No. 24-16
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procedure for the resolution ofdisputes properly submissible to the
procedure absent a showing that such deferral will result or has
resulted in the application of principles repugnant to this article;
furthermore, the permanent umpire [shall] must defer to state
procedures in those matters which are governed by the law
enforcement officers bill of rights, [article 27, sections 727 et seq.,
Annotated Code of Maryland] MD Code, Public Safety, §§3-101
to 3-113, as amended.*
(6)
Obtain any necessary support servIces and make necessary
expenditures in the performance of duties to the extent provided
for these purposes in the annual budget of Montgomery County;
and
(7)
Exercise any other powers and perform any other duties and
functions as may be specified in sections 33-79 and 33-82 of this
article.
(b)
The [permanent umpire must be appointed by the] County Executive
must appoint the permanent umpire, subject to confrrmation by the
County Council, [serve] for a term of5 years.! [, and] The Executive may
[be reappointed to another 5-year term] reappoint an incumbent umpire.
[The permanent umpire must not be reappointed if, during the period
between 60 days and 30 days before the umpire's term expires, the
certified representative files a written objection to the umpire's
reappointment with the County Executive.]
(c)
If the permanent umpire dies, resigns, becomes disabled, or otherwise
becomes unable or ineligible to continue to serve, the Executive must
appoint a new permanent umpire, subject to confirmation by the Council,
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ExPEDITED BILL
No.
24-16
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to serve the remainder of the previous umpire's term.
The umpire
appointed under this subsection may be reappointed under subsection (b).
(d)
The permanent umpire must be a person with experience [as a neutral in
the field of labor relations] conducting adjudicatory hearings, such as
~
retired judge, and must not be a person who, because of vocation,
employment, or affiliation, can be categorized as a representative of the
interests of the employer or any employee organization.
(e )
The permanent umpire must be paid a daily fee as specified in a contract
with the County, and must be reimbursed for necessary expenses incurred
in performing the duties of umpire.
33-80. Collective bargaining.
*
(b)
*
*
Employer rights.
[This article and any agreement pursuant hereto shall
not impair the right and responsibility of the employer.] All elements of
the employment relationship that are not expressly identified as
~
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mandatory subj ect ofbargaining in subsection
fu)
are employer rights that
are not subject to bargaining. Employer rights include the employer's
right to:
(1)
[To] determine the overall budget and mission ofthe employer and
any agency of county government;
(2)
[To] maintain and improve the efficiency and effectiveness of
operations;
(3)
[To] determine the services to be rendered and the operations to be
performed;
(4)
[To] determine the overall organizational structure, methods,
processes, means, job classifications or personnel by which
operations are
to
be conducted and the location of facilities;
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EXPEDITED BILL
No.
24-16
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(5)
(6)
[To] direct or supervise employees;
[To] hire, select and establish the standards governing promotion
of employees and to classify positions;
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(7)
[To] relieve employees from duties because of lack of work or
funds, or under conditions when the employer determines
continued work would be inefficient or nonproductive;
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(8)
[To make and enforce rules and regulations not inconsistent with
this law or a collective bargaining agreement;]
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[(9)] [To] take actions to carry out the mission of government
situations of emergency;
[(10)]
(2)
[To] transfer, assign and schedule employees.
In
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.Gill
determine the size, grades, and composition ofthe work force.
(ill
set the standards ofproductivity and technology.
establish
employee
performance
standards
and
evaluate
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.em
employees, except that evaluation procedures shall be
~
subject for
bargaining.
01)
make and implement systems for awarding outstanding service
increments, extraordinary performance awards, and other merit
awards.
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103
.Q.1)
introduce new or improved technology, research, development,
and services.
@
control and regulate the use of machinery, equipment, and other
property and facilities ofthe employer, subject to subsection
ofthis section.
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107
.QQ)
maintain internal security standards.
!..l1)
create, alter, combine, contract out, or abolish any job
classification, department, operation, unit, or other division or
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ExPEDITED BILL
No. 24-16
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service. provided that no contracting of work which will displace
employees may be undertaken
Qy
the employer unless ninety (90)
days prior to signing the contract. or such other date of notice as
agreed
Qy
parties. written notice has been given
to
the certified
representative.
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Q.ID
suspend, discharge, or othetwise discipline employees for cause,
subject to Charter section 404, any grievance procedure set forth
in the collective bargaining agreement, and the Law Enforcement
Officers Bill of Rights, MD Code, Public Safety, §§3-10 1 to 3­
113, as amended.
.(2)
issue and enforce rules, policies, and regulations necessary to
.£illIY
out these and all other managerial functions which are not
inconsistent with this article, federal or state law, or the terms of
the collective bargaining agreement.
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*
(d)
*
*
Time limits. Collective bargaining [shall] must commence no later than
[November I] October
li
preceding a fiscal year for which there is no
contract between the employer and the certified representative and [shall]
must be concluded by January 20. The employer must publish the
certified representative's initial proposal on all terms and the employer's
initial counter-proposal on all terms on an internet site accessible to the
public within 10 days after the employer's initial counter-proposal is
made. The resolution of an impasse in collective bargaining [shall] must
be completed by February [1]
li.
These time limits may be waived only
by prior written consent ofthe parties.
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*
33-81. Impasse procedure.
*
*
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EXPEDITED BILL
No. 24-16
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(a)
Before September 10 of any year in which the employer and a certified
representative bargain collectively, they [shall] must choose [an impasse
neutral]
~
mediator either by agreement or through the processes of the
American Arbitration Association. The [impasse neutral shall] mediator
must be required to be available dlJfing the period from January 20 to
February [1] 15. Fees, costs and expenses of the [impasse neutral shall]
mediator must be shared equally by the employer and the certified
representative.
(b)
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(1)
During the course of collective bargaining, either party may
declare an impasse and request the services of the [impasse
neutral] mediator. If the parties have not reached agreement by
[January 20] February
1,
an impasse exists.
(2)
Whenever an impasse has been reached, the dispute [shall] must
be submitted to the [impasse neutral] mediator. The [impasse
neutral shall] mediator must attempt mediation by bringing the
parties together voluntarily under such favorable auspices as will
tend
to
effectuate the settlement ofthe dispute.
(3)
If the [impasse neutral] mediator, in the [impasse neutral's]
mediator's sole discretion, finds that the parties are at a bona fide
impasse, the [impasse neutral] mediator must certify the impasse
for arbitration before an arbitration panel selected pursuant to
Section 33-103A. The 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 impasse [neutral chooses] including
~
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fmal offer on each item that remains in dispute. [If only complete
package proposals are required, the] The [impasse neutral]
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ExPEDITED BILL
No. 24-16
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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] arbitration panel may hold
a hearing for this purpose at a time, date and place selected by the
[impasse neutral] arbitration panel. [Said] The hearing must [not]
be open to the public.
(5)
On or before February
[1]
12,
the [impasse neutral] arbitration
panel must select, as a whole, the more reasonable, in the [impasse
neutral's] arbitration panel's judgment, of the fmal offers
submitted by the parties.
(A)
The [impasse neutral] arbitration panel must first [evaluate
and give the highest priority to] determine the ability of the
County to [pay for additional] afford any short-term and
long-term expenditures [by considering] required
by
~
final
offer:
(i)
[the limits on the County's ability to raise taxes under
State law and the County Charter] assuming no
increas,e in any existing tax rate or the adoption ofany
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(ii)
[the added burden on County taxpayers, if any,
resulting from increases in revenues needed to fund a
final offer] assuming no increase in revenue from an
ad valorem tax on real property above the limit in
County Charter Section 305; and
!8J
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ExPEDITED BILL
No. 24-16
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(iii)
considering the County's ability to continue to
provide the current [standard] level of all public
servIces.
(B)
[After evaluating the ability of the County to pay] If the
arbitration panel finds under subparagraph (A) that the
County can afford both final offers, the [impasse neutral
may only] arbitration panel must 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
other
public
employers
in
the
Washington
Metropolitan Area and in Maryland;
(iv)
a comparison of wages, hours, benefits, and
conditions of employment of other Montgomery
County employees; and
(v)
wages, benefits, hours and other working conditions
of similar employees of private employers in
Montgomery County
(6)
The [impasse neutral] arbitration panel must:
(A)
not compromise or alter the fmal offer that [he or she] the
panel selects;
(B)
select an offer based on the contents of that offer;
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ExPEDITED BILL
No. 24-16
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(C)
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 detennine 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] must have the force and effect of a contract
voluntarily entered into and ratified as set forth in subsection 33­
80(g) above. The parties [shall] must execute such agreement.
(c)
An impasse over a reopener matter 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).
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(1)
Ifthe 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."
(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]
~
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ExPEDITED BILL
No. 24-16
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(6)
(5)
(4)
(3)
mediator who agrees to be available for impasse resolution within
30 days.
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.
If an impasse is declared under paragraph (3), the dispute must be
submitted to
[the]
an [impasse neutral] arbitration panel selected
pursuant to Section 33-103A no later than 10 days after impasse is
declared.
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
(C)
the [impasse neutral] arbitration panel must select the most
reasonable of the parties' fmal. offers no later than 10 days
after the [impasse neutral] arbitration panel receives the
final offers.
This subsection applies only if the parties in their collective
bargaining· agreement have designated:
(A)
(B)
the specific reopener matter to be bargained;
the date by which bargaining on the reopener matter must
begin; and
(C)
the deadline by which bargaining on the reopener matter
must be completed and after which the impasse procedure
must be implemented.
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EXPEDITED BILL
No. 24-16
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33-103. Labor relations administrator.
*
(b)
(1)
*
*
The Administrator must be a person with experience [as a neutral
in the field of labor relations] conducting adjudicatory hearings,
such as
~
retired judge, and must not be a person who, because of
vocation, employment, or affiliation, can be categorized as a
representative of the interest of the employer or any employee
organization.
(2)
The County Executive must appoint, subject to confIrmation by
the County Council, the Administrator for a term of 5 years [from
a list of5 nominees agreed upon by any certified representative(s)
and the Chief Administrative Officer]. The [list] Executive may
[include] reappoint the incumbent Administrator. [If the Council
does not confirm the appointment, the new appointment must be
from a new agreed list of5 nominees. Ifno certified representative
has been selected, the Administrator must be appointed for a 4­
year term by the Executive, subject to Council confirmation.]
*
33-107. Collective bargaining.
*
*
*
*
*
(c)
Employer rights.
[This article and any agreement made under it shall not
impair the right and responsibility of the employer to perform] All
elements ofthe employment relationship that are not expressly identified
as
~
mandatory subject of bargaining in subsections
W
or
®
are
employer rights that are not subject to bargaining. Employer rights
include the following:
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ExPEDITED BILL
No. 24-16
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(1)
Detennine the overall budget and mission ofthe employer and any
agency ofcounty government.
(2)
Maintain and improve the efficiency and effectiveness of
operations.
(3)
Detennine the services to be rendered and the operations to be
perfonned.
(4)
Detennine the
overall
organizational
structure,
methods,
processes, means, job classifications, and personnel by which
operations are to be conducted and the location of facilities.
(5)
(6)
Direct and supervise employees.
Hire, select, and establish the standards governing promotion of
employees, and classify positions.
(7)
Relieve employees from duties because of lack of work or funds,
or under conditions when the employer detennines continued work
would be inefficient or nonproductive.
(8)
Take actions to carry out the mission of government in situations
of emergency.
(9)
Transfer, assign, and schedule employees.
312
313
(10) Determine the size, grades, and composition ofthe work force.
(11)
Set the standards ofproductivity and technology.
employee
perfonnance
standards
and
evaluate
314
315
316
317
318
319
(12) Establish
employees, except that evaluation procedures shall be a subject for
bargaining.
(13) Make and implement systems for awarding outStanding service
increments, extraordinary perfonnance awards, and other merit
awards.
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ExPEDITED BILL
No. 24-16
320
321
322
323
324
325
326
327
328
329
330
331
332
333
334
335
336
337
338
(14) Introduce new or improved technology, research, development,
and services.
(15) Control and regulate the use of machinery, equipment, and other
property and facilities ofthe employer, subject to subsection (a)(6)
of this section.
(16) Maintain internal security standards.
(17)
Create, alter, combine, contract out, or abolish any· job
classification, department, operation, unit, or other division or
service, provided that no contracting of work which will displace
employees may be undertaken by the employer unless ninety (90)
days prior to signing the contract, or such other date of notice as
agreed by parties, written notice has been given to the certified
representative.
(18)
Suspend~
discharge, or otherwise discipline employees for cause,
except that, subject to Charter section 404, any such action may be
subject to the grievance procedure set forth in the collective
bargaining agreement.
(19) Issue and enforce rules, policies, and regulations necessary to carry
out these and all other managerial functions which are not
339
340
341
342
343
344
345
346
inconsistent with this article, federal or state law, or the terms of
the collective bargaining agreement.
*
(a)
*
*
33-108. Bargaining, impasse, and legislative procedures.
Collective bargaining must begin no later than [November 1] October
li
before the beginning of a fiscal year for which there is no agreement
between the employer and the certified representative, and must be
finished on or before February [1]
12..
The employer must publish the
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ExPEDITED BILL
No.
24-16
347
348
349
350
351
352
353
certified representative's initial proposal on all terms and the employer's
initial counter-proposal on all terms on an internet site accessible to the
public within 10 days after the employer's initial counter-proposal is
made.
(b)
Any provision for automatic renewal or extension of a collective
bargaining agreement is void. An agreement is not valid if it extends for
less than one (1) year or for more than three (3) years. All agreements
take effect July 1 and end June 30.
(c)
A collective bargaining agreement takes effect only after ratification by
the employer and the certified representative. The certified representative
may adopt its own ratification procedures.
(d)
Before September 10 ofany year in which the employer and the certified
representative bargain collectively, the Labor Relations Administrator
must appoint a [mediator/arbitrator] mediator, who may be a. person
recommended by both parties. The [mediator/arbitrator] mediator must
be available from January 2 to June 30. Fees and expenses of the
[mediator/arbitrator] mediator must be shared equally by the employer
and the certified representative.
(e)
354
355
356
357
358
359
360
361
362
363
364
365
366
367
(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. Ifthe parties do not
reach an agreement by February 1, an impasse exists. Any issue
regarding the negotiability of any bargaining proposal must be
referred to the Labor Relations Administrator for an expedited
determination.
368
369
370
371
372
tlsJ
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ExPEDITED BILL NO. 24-16
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390
391
(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 [mediator/arbitrator] mediator must engage
in mediation by bringing the parties together voluntarily under
such favorable circumstances as will encourage settlement of the
dispute.
(3)
If
the
[mediator/arbitrator]
mediator~s
mediator
finds,
m
the
[mediator/arbitrator'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
selected under Section 33-103A.
(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 directs] including
~
[mal offer on each
item that remains in dispute. [If only complete package proposals
are required, the mediator/arbitrator] The 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 oftheir
proposals. The [mediator/arbitrator] arbitration panel may hold a
hearing for this purpose at a time, date, and place selected by the
392
393
394
395
396
397
398
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EXPEDITED BILL
No.
24-16
399
400
401
402
403
404
405
406
407
408
409
410
411
[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 fmal
offers submitted by the parties.
The [mediator/arbitrator]
arbitration panel must not compromise or alter a fmal offer. The
[mediator/arbitrator] arbitration panel must not 'consider or receive
any argument or evidence related to the history of collective
bargaining in the immediate dispute, including any previous
settlement offer not contained in the final offers. However, the
[mediator/arbitrator] 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
412
413
[mediator/arbitrator] arbitration panel must first [evaluate and give
the highest priority to] determine the ability ofthe County to (pay
for additional] afford any 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] assuming no increase in any
existing tax rate or the adoption of any new
tax;
(B)
[the added burden on County taxpayers, if any, resulting
from increases in revenues needed to fund a fmal offer]
assuming no increase in rev.enue from an ad valorem tax on
real property above the limit in County Charter Section 305;
and
414
415
416
417
418
419
420
421
422
423
424
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EXPEDITED BILL
No. 24-16
425
426
427
428
429
430
431
432
433
434
435
436
437
438
439
440
441
442
443
(C) considering the County's ability to continue to provide the
current [standard] level of all public services.
(5)
[After evaluating the ability ofthe County to pay] Ifthe arbitration
panel finds that under paragraph (4) the County can afford both
final offers, the [mediator/arbitrator may only] the arbitration panel
must consider:
(A) the interest and welfare of County taxpayers and service
recipients;
(B) past collective bargaining agreements between the parties,
including the past bargaining history that led to each
agreement;
(C) a comparison of wages, hours, benefits, and conditions of
employment of similar employees of other public
employers in the Washington Metropolitan Area and in
Maryland;
(D) a comparison of wages, hours, benefits, and conditions of
employment ofother Montgomery County employees; and.
(E) wages, benefits, hours, and other working conditions of
similar employees of private employers
in
Montgomery
444
445
446
447
448
449
450
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
-ID
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EXPEDITED BILL
No. 24-16
451
452
453
454
455
456
457
458
459
460
461
462
463
464
the County budget must be included in the budget which the
employer submits to the County Council.
*
*
*
*
*
33-149. Labor Relations Administrator.
*
(b)
The Administrator must be a person with experience [as a neutral in labor
relations] conducting adjudicatory hearings, such as
~
retired judge, and
must not be a person who, because of vocation, employment, or
affiliation, can be categorized as a representative of the interest of the
employer or any employee organization.
(c)
The County Executive must appoint the Administrator, subject to
confirmation by the County Council [, from a list of 5 nominees agreed
on by the certified representative and the Chief Administrative Officer].
[If there is no certified representative, the Executive must appoint an
Administrator, subject to confirmation by the Council. Ifthe Council does
not confirm an appointment, the Executive must appoint another person
from a new agreed list of 5 nominees and submit that appointee to the
Council for confirmation.] The Administrator serves a term of 5 years.
[An
incumbent Administrator is automatically reappointed for another 5­
465
466
467
468
469
470
471
472
473
474
475
476
477
year term, subject to Council confIrmation, unless, during the period
between 60 and 30 days before the term expires, the certified
representative notifies the Chief Administrative Officer or the employer
notifies the certified representative that either objects to the
reappointment.]
Administrator.
The
Executive
may
reappoint the
incumbent
*
33-152. Collective bargaining.
*
!}9J
*
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ExPEDITED BILL
No. 24-16
478
479
480
481
482
483
484
485
486
487
488
489
490
491
492
493
494
495
496
497
498
499
500
501
502
503
504
*
(b)
*
*
Employer rights.
[This Article and any collective bargaining agreement
made under it must not impair the right and responsibility ofthe employer
to] All elements of the employment relationship that are not expressly
identified as
~
mandatory subject of bargaining in subsection
ill)
are
employer rights that are not subject to bargaining. Employer rights
include the right to:
(1)
determine the overall budget and mission of the employer and any
agency of County government;
(2)
maintain and improve the efficiency and effectiveness of
operations;
(3)
determine the services to be rendered and the operations to be
performed;
(4)
determine the overall organizational structure, methods, processes,
means, job classifications, and personnel by which operations are .
conducted, and the location offacilities;
(5)
(6)
direct and supervise employees;
hire, select, and establish the standards governing promotion of
employees, and classify positions;
(7)
relieve employees from duties because oflack ofwork or funds, or
when the employer determines continued work would be
inefficient or nonproductive;
(8)
take actions to carry out the mission of government in emergency
situations;
(9)
transfer, assign, and schedule employees;
(10) determine the size, grades, and composition ofthe work force;
(11)
set standards ofproductivity and technology;
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ExPEDITED BILL
No. 24-16
505
506
507
508
509
510
511
(12) establish
employee
perfonnance
standards
and
evaluate
employees, but evaluation procedures are subject to bargaining;
(13) make and implement systems for awarding outstanding service
increments, extraordinary perfonnance awards, and other merit
awards;
(14) introduce new or improved technology, research, development,
and services;
(15) control and regulate the use of machinery, equipment, and other
property and facilities ofthe employer, subject to subsection (a)(6);
(16) maintain internal security standards;
(17) create, alter, combine, contract out, or abolish any job
classification, department, operation, unit, or other division or
service, but the employer must not contract work which will
displace employees unless it gives written notice to the certified
representative 90 days before signing the contract or other notice
agreed by the parties;
(18) suspend, discharge, or otherwise discipline employees for cause,
except that, subject to Charter Section 404, any such action may
be subject to a grievance procedure included in a collective
bargaining agreement; and
(19) issue and enforce rules, policies, and regulations necessary to carry
out these and all other managerial functions which are not
inconsistent with this Article, federal or State law, or the tenns of
a collective bargaining agreement.
512
513
514
515
516
517
518
519
520
521
522
523
524
525
526
527
528
529
530
*
*
*
33-153. Bargaining, impasse, and legislative procedures.
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ExPEDITED BILL
No. 24·16
531
532
533
534
535
536
537
538
539
540
541
542
543
544
545
546
547
548
549
(a)
Collective bargaining must begin no later than the [November,l] October
12.
before the beginning of a fiscal year for which there is no agreement
between the employer and the certified representative, and must be
completed on or before [January] February 15[.].1 including the [The]
resolution of a bargaining impasse [must
be
completed by February 1].
These time limits may be waived or extended by written agreement ofthe
parties. The employer must publish the certified representative's initial
proposal on all terms and the employer's initial counter-proposal on all
terms on an internet site accessible to the public within 10 days after the
employer's initial counter-proposal is made.
(b)
Any provision for automatic renewal or extension of a collective
bargaining agreement is void.
An
agreement is void if it extends for less
than 1 year or more than 3 years. Each collective bargaining agreement
must take effect July 1 and end June 30.
(c)
A collective bargaining agreement takes effect only after ratification by
the employer and the certified representative. The certified representative
may adopt its own ratification procedures.
(d)
Before September 10 ofany year in which the employer and the certified
representative bargain collectively, they must choose [an impasse
neutral]
£!
mediator, either by agreement or through the processes of the
American Arbitration Association. The [impasse neutral] mediator must
550
551
552
553
554
555
556
557
be
available from January 15 to February
[1]
12..
The [impasse neutral's]
mediator's fees and expenses must be shared equally by the employer and
the certified representative.
(e)
During the course of collective bargaining, either party may declare an
impasse and request the services ofthe [impasse neutral] mediator, or the
parties may jointly request those services before declaring an impasse. If
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ExPEDITED BILL
No. 24-16
558
559
560
561
562
563
564
565
566
567
568
569
570
571
571
573
574
575
576
577
578
579
580
581
582
583
584
(i)
the parties have not agreed on a collective bargaining agreement by
[January 151 February 1, an impasse exists by operation of law.
(f)
When an impasse is reached, the parties must submit the dispute to the
[impasse neutral] mediator. The [impasse neutral] mediator must attempt
mediation by bringing the parties together voluntarily under conditions
that will tend to bring about a settlement of the dispute.
(g)
If the [impasse neutral] mediator, in the [impasse neutral's] mediator's
sole discretion, finds that the parties are at a bona fide impasse, the
[impasse neutral] mediator must refer the dispute to an arbitration panel
selected under Section 33-I03A. 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]' on each item not agreed
upon. Neither party may change 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] arbitration panel may hold a hearing at
a time, date, and place selected by the [impasse neutral] arbitration paneL
The hearing must [not] be open to the public.
On or before February [1] 15, unless that date is extended by written
agreement of the parties, the [impasse neutral] arbitration panel must
selec~
without compromising, the fmal offer that, as a whole, the
[impasse neutral] arbitration panel judges to be the more reasonable.
(1 )
In determining which fmal offer is the more reasonable, the
[impasse neutral] arbitration panel must first [evaluate and give the
highest priority to] determine the ability ofthe County to [pay for
6\
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ExPEDITED BILL
No. 24-16
585
586
587
588
589
590
591
592
593
594
595
596
597
598
599
600
601
602
603
604
605
606
607
608
609
610
additional] afford any short-term and long-term expenditures [by
considering] required!2Y the final offers:
(A)
[the limits on the County's ability to raise taxes under State
law and the County Charter] assuming no increase in any
existing tax rate or the adoption of any new tax;
(B)
[the added burden on County taxpayers, if any, resulting
from increases in revenues needed to fund a final offer]
assuming no increase in revenue from an ad valorem tax on
real property above the limit in County Charter Section 305;
and
(C)
considering the County's ability to continue to provide the
current [standard] level of all public services.
(2)
[After evaluating the ability ofthe County to pay] Ifthe arbitration
panel finds under paragraph (1) that the County can afford both
fInal offers, the [impasse neutral] arbitration panel [may only] must
consider:
(A)
the interest and welfare of County taxpayers and service
recipients;
(B)
past collective bargaining agreements between the parties,
including the past bargaining history that led to each
agreement;
(C)
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
@
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ExPEDllED BILL
No. 24-16
611
612
613
614
615
616
617
618
619
620
621
622
623
624
625
626
627
628
629
630
631
632
633
634
635
636
637
(E)
wages, benefits, hours, and other working conditions of
similar employees of private employers in Montgomery
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 information concerning the collective bargaining
leading to impasse. The [impasse neutral] arbitration panel must neither
compromise nor alter the final offer that [he or she selects] they select.
(k)
The final offer selected by the [impasse neutral] 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.
*
33-103A.
Arbitration Panel.
*
*
Sec.2. Section 33-103A is added as follows:
ill
Purpose.
An
arbitration panel may conduct g hearing and resolve an
Impasse in collective bargaining between g certified employee
representative and the employer under Sections 33-81, 33-108, and 33­
153.
.Gil
Panel.
The Council must appoint
~
retired judges for g 5-year term to
serve as an arbitration panel neutral member if the parties are unable to
agree on g neutral member.
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~ective
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ExPEDITED BILL
No. 24-16
638
639
(£)
Composition.
An
arbitration panel contains
:2.
members. One member
must be selected
Qy
the certified employee representative involved in the
impasse. One member must be selected
Qy
the employer. The employee
representative member and the employer representative member may
jointly select the neutral member. The neutral member must be g retired
judge. If they are unable to agree, the parties must select g retired judge
from g panel appointed
Qy
the Council under subsection
(Q)
Qy
alternate
strikes with the employee representative going first. The neutral member
must not be the mediator who attempted
to
mediate the impasse.
640
641
642
643
644
645
646
647
648
@
Term.
An
arbitration panel selected under subsection
(£)
serves until the
Council takes fmal action on the collective bargaining agreement at
Impasse.
649
650
651
652
653
DU
Procedure.
The neutral member is the panel chair and must preside at
any hearing. A majority ofthe arbitration panel must vote for g decision
resolving an impasse.
ill
Compensation.
The employer and the certified representative must
pgy
any fees and expenses for their own representative. Fees and expenses of
the neutral member must be shared equally
Qy
the employer and the
certified representative.
654
655
656
657
Sec. 3.
Expedited Effective Date.
The Council declares that this
658
659
legislation is necessary for the immediate protection ofthe public interest. This Act
takes effect on the date when
it
becomes law.
660
661
Approved:
662
Nancy Floreen, President, County Council
Date
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LEGISLATIVE REQUEST REPORT
Expedited Bill 24-16
Collective Bargaining
-
Impasse Procedures
-
Amendments
DESCRIPTION:
Expedited Bill 24-16 would amend the collective bargaining laws to
increase transparency, expand the time for bargaining, modify the
employer rights, amend the qualifications of the Labor Relations
Administrator and the selection process, and amend the process for
mediation and arbitration of interest disputes.
The County collective bargaining laws have not resulted in sustainable
negotiated agreements that are approved by the Council
in
recent
years.
The goal of the Bill is to promote sustainable negotiated agreements
that can be approved by the Council without resorting to arbitration.
Chief Administrative Officer, Director of Human Resources, County
Attorney.
To be requested.
To be requested.
To be requested.
To be researched.
Robert
H.
Drummer, Senior Legislative Attorney
Not applicable.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
None.
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MONTGOMERY COUNTY COUNCIL
ROCKVI LLE, MARYLAND
NANCY FLOREEN
COUNCI L PRESIDENT
MEMORANDUM
June 14,2016
TO:
Councilmembers
FROM:
SUBJECT:
Nancy
Flor4~il
President
Proposed Bill to amend the procedures for resolving an impasse in collective
bargaining
Now that we have unanimously adopted the budget, it is a good time to review some of our
collective bargaining laws. Although we have separate collective bargaining laws for police, fire,
and general County employees, the procedures for resolving a collective bargaining impasse are
almost identical in each law. I plan to introduce the attached Bill to make several important
changes to the impasse procedures in each collective bargaining law. The Bill would make
changes in the system in 6 important areas - changes that would make the system work better for
employees, government operations, and taxpayers alike.
Transparency
The entire collective bargaining process is currently handled out of the public eye.
Negotiations are private, and the evidentiary hearing before the arbitrator is held in private. As
the County government moves to more transparency, I believe it is time to open up a collective
bargaining process that results in decisions on wages and benefits that consume the overwhelming
'majority ofour operating budget. The Bill would:
1.
2.
require public disclosure of each party's initial bargaining position on all
provisions; and
require that any evidentiary hearing before the arbitration panel be open to the
public.
Time for Negotiation
Although negotiations must end in time for the Council to review the final agreements
before adopting the operating budget, we can provide additional time by requiring negotiations
to
begin before November 1. The Bill would give the union and the Executive an extra 2 weeks by
requiring negotiations to begin on October 15.
100
MARYLAND AVENUE, 6TH FLOOR. ROCKVILLE, MARYLAND
20850
2401777-7959 •
FAX
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Employer Rights
Each of the collective bargaining laws contains a list of employer rights that cannot be
"impaired" by a collective bargaining agreement. The Police Labor Relations Act contains 10
employer rights. Both the law governing general County employees and the law governing fIre
employees have the same 19 employer rights. The Bill would make the list of employer rights for
police employees consistent with the other 2 bargaining laws that were enacted more recently. In
addition, the Labor Relations Administrators have minimized these employer rights over the years
by narrowly interpreting the language in each law that prohibits bargaining from "impairing" these
rights and consequently expanding the scope of collective bargaining. The Bill would also clarify
that bargaining is limited to the subjects listed in the law as subject to bargaining and strengthens
the application of employer rights.
Selection of Labor Relations Administrator
Each collective bargaining law requires the Executive to appoint a labor relations
administrator or permanent umpire (LRA) for a 5-year term of office, subject to Council
confirmation. Each LRA holds a quasi-judicial office in County government and is responsible
for resolving disputes between the employer and the union by conducting adjUdicatory hearings.
The LRA resolves questions concerning a bargaining unit, representation elections; the scope of
collective bargaining, and prohibited practice charges. The LRA serves the function performed
by the National Labor Relations Board for the private sector. Each current law requires the LRA
to be experienced as a neutral in the field of labor relations. In practice, the LRA is normally
chosen from the universe of professional labor arbitrators who often work as grievance arbitrators
in the field of labor relations. The Bill would require the LRA to be experienced in conducting
adjudicatory hearings, such as a retired judge. Due in part to Maryland's mandatory retirement
policy for its judges, m'!lly retired judges continue to work as mediators and arbitrators. Many
have a wealth of experience and excellent reputations for issuing well-reasoned decisions in many
areas of the law. In addition, the Bill would repeal the right of a union to veto the re-appointment
by the Executive of the LRA. The Executive and the Council are the elected representatives who
are charged with appointing County officials.
Mediation
Each of the current collective bargaining laws requires one neutral person to serve as both
the mediator and the arbitrator. This is known as med-arb. The advantage ofmed-arb is that the
mediator-arbitrator is already familiar with the issues and the respective positions of the parties
before the arbitration hearing begins. However, this procedure subverts the traditional role ofthe
mediator by giving the mediator too much authority to impose his or her own will on the parties.
The parties may be reluctant to speak freely in front of a mediator who will ultimately serve as the
judge or arbitrator. The negotiators for each party are discouraged from revealing to the mediator­
arbitrator the full extent of their authority. A traditional mediator has no power to impose a final
decision on either party, and can therefore provide better feedback to each party in separate
meetings and encourage a negotiated settlement rather than force one. The Bill would separate the
role of mediator and arbitrator.
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Arbitration
Under current law, the arbitration is held before one person who previously served as the
mediator. Each party submits a final package that includes a fmal offer on each item still in dispute
along with all of the items that have been previously agreed upon. The arbitrator is required to
select either the Executive's final package or the union's final package. This is known as final
offer by package arbitration. The system is designed to discourage each party from submitting a
final offer on any item that is unreasonable in order to avoid losing the entire package.
It
results
in a clear winner and loser in each arbitration and is designed to discourage the parties from going
to arbitration. Although the Executive has reached negotiated agreements with each union without
arbitration in the last several years, the Executive has explained his agreements, in part, by opining
that an arbitration decision would result in a worse outcome. In fact, the union has won 16 of the
20 arbitration decisions under this system since 1988. Although there are many possible
explanations for these results other than the "system," I believe it is time to try a different approach.
The Bill would make 2 changes in this area.
3-Person Arbitration Panel
The Bill would create a 3-person arbitration panel that includes 1 member appointed by the
Executive, 1 member appointed by the union, and a neutral3
rd
member. The neutra13
rd
member
would be a retired judge. The management member and the union member would agree on the
neutral member. If they were unable to agree, the person would be selected from a panel of retired
judges selected by the Council. This would ensure that the perspectives of each party would be
considered in the panel's deliberations.
The criteria for the arbitration panel to consider
In December 2010, the Council enacted Bill 57-10, which modified the criteria for the
arbitrator to consider by requiring the arbitrator to consider first the ability ofthe County to afford
a proposed economic provision. The Bill would better define the first factors for the arbitration
panel to consider by adopting amendments to Bill 57-10 that were recommended by the County
Attorney's Office in 2010, but not adopted by the Council. The Bill would require the arbitration
panel to first consider affordability before applying the traditional factors with the following
language:
The arbitration panel must first determine the ability ofthe County to afford any
short-term and long-term expenditures required by a final offer:
(i)
assuming no increase in any existing tax rate or the adoption ofany new
tax;
(ii)
assuming no increase in revenue from an ad valorem tax on real property
above the limit in County Charter Section 305; and
(iii)
considering the County's ability to continue to provide the current level of
all public services.
I would welcome your support for this Bill.
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