Agenda Item 13
July 12,2016
Public Hearing
MEMORANDUM
July 8, 2016
TO:
FROM:
County Council
Robert H. Drummer, Senior Legislative
Attorne)\~\
i
I (,
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(a\
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SUBJECT:
Public Hearing:
Expedited Bill 24-16, Collective Bargaining - Impasse
Procedures - Amendments
Expedited Bill 24-16, Collective Bargaining
Impasse Procedures - Amendments,
sponsored by Lead Sponsor Council President Floreen and Co-Sponsor Councilmember Rice, was
introduced on June 21, 2016. A Government Operations and Fiscal Policy Committee worksession
will be scheduled at a later date;
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 consume 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
3.
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employer rights. Each of the other 2 collective bargaining laws has 19 employer
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 tenn ofoffice, subject
to Council confinnation, 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.
2
5.
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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 of the 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.
Montgomery County Organizational Reform Commission
The Council established the Montgomery County Organizational Reform Commission
(ORC) on May 18, 2010 by Resolution No. 16-1350. The Council appointed 8 members in
Resolution No. 16-1434 on July 20, 2010. See ©33-34. The ORC was charged with making
recommendations for potential reorganization or consolidation of functions performed by County
government and County-funded agencies. The ORC issued its fmal report to the Council and
Executive on January 31, 2011. One of the issues studied by the ORC was the County collective
bargaining process. The ORC recommendations on collective bargaining are at ©35-45.
The ORC recommended:
(1)
Increasing the public's ability to participate in the collective bargaining process by
publishing the opening proposals from each side, opening up the evidentiary
hearing before the impasse arbitration panel, and holding a public hearing on the
agreement before Council action;
eliminating the Executive's obligation to conduct "effects bargaining" with the
police union;
requiring the impasse arbitrator to assume no increase in taxes when determining
the affordability of a union proposal; and
establish a 3-person arbitration panel to resolve an impasse in bargaining consisting
of a management representative, a union representative, and a 3
rd
neutral arbitrator
agreed upon by the other 2 members or, if no agreement, selected from a panel of
public members previously appointed by the CounciL
(2)
(3)
(4)
The Council President introduced Bill 19-11, Personnel - Collective Bargaining - Public
Access, and Bill 20-11, Personnel Collective Bargaining - Public Accountability - Impasse
Arbitration, to implement these recommendations on June 14,2011. The Council did not enact
either Bill. The Council President also introduced Bill 18-11, Police Labor Relations - Duty to
Bargain, to eliminate "effects bargaining" for the police union. Bill 18-11 was enacted by the
Council on July 19, 2011.1
The Fraternal Order of Police petitioned Bill 18-11
to
referendum. The County voters approved Bill 18-11 in the
November 2012 election.
I
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Bill 9-13
Bill 9-13, Collective Bargaining - Impasse - Arbitration Panel, sponsored by
Councilmember Andrews, was introduced on March 19. Bill 9-13 would have separated the role
of mediator and arbitrator. The Bill would also have established 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 have been selected by the parties. The Council
would have recommended 3 public members and 2 alternate public members. The Executive
would have appointed, subject to Council confirmation, each of the 5 public members to a three­
year term. Each public member would have been a County resident knowledgeable in fiscal
matters who is unaffiliated with federal, State, or local management or labor unions. A majority
of the 3 public members on the arbitration panel would have had to vote for a decision resolving
an impasse.
The Council held a public hearing on Bill 9-13 and referred it to the Government
Operations and Fiscal Policy (GO) Committee for a recommendation. The GO Committee
considered the Bill at a worksession on June 24, 2013. The GO Committee recommended
disapproval of the Bill and agreed to send a request to the Executive for his recommendations on
how to improve the interest arbitration process. A copy of the GO Committee request
to
the
Executive is at ©46. The Executive never responded. Bill 9-13 was not enacted.
Other Jurisdictions
Many States have enacted comprehensive collective bargaining laws covering all State and
local government employees. Maryland has enacted a comprehensive collective bargaining law
for public school employees and for State employees, but leaves the regulation of collective
bargaining with County and municipal employees up to the local legislative body. However, it
may be useful to compare the amendments in Bill 24-16 with some of the State and local laws
governing collective bargaining with State and local government employees.
a.
Transparency -
Alaska and Iowa have enacted laws making the opening proposals
from each side
in
collective bargaining open to the pUblic. See Alaska Stat.
§23.40.235 and Iowa Code
Ann.
§20.l7(3). Alaska law also makes a party's last­
best-offer a public document. Florida, Kansas, Minnesota, Montana, Tennessee
and Texas require all bargaining sessions to be open to the public.
Bill 24-16 would
not require any bargaining sessions to be open to the public.
Bill 24-16 would also require the arbitration hearing to be open to the pUblic. Prince
George's County Code §13A-l11.01 similarly requires an open hearing. The
District of Columbia Code similarly requires a fact-fmding hearing to resolve an
impasse in bargaining to be open to the public. See D.C. Code § 1-61 7.12.
b.
Selection of the Labor Relations Administrator or Permanent Umpire (LRA)
Comprehensive State public sector collective bargaining laws usually create an
independent agency, often called the Public Employee Relations Board (PERB) to
administer the law and resolve disputes. Each County collective bargaining law
creates the
LRA
position to perform these duties. Bill 24-16 would provide that
the
LRA
is appointed by the Executive, subject to confirmation by the CounciL
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This is consistent with Section 215 of the County Charter which requires the
Executive to "appoint, subject to confirmation of the Council, all members of
boards and commissions unless otherwise prescribed by state law or this Charter."
The appointment of the LRA by the Executive without a formal role for labor
unions
2
in the appointment process is not unique in surrounding states. PERB
members are appointed by the Governor, subject to confirmation by the Legislature
in New York, Pennsylvania, Delaware, Connecticut, and the District of Columbia.
The members of the Federal Labor Relations Authority, created by Congress to
administer the collective bargaining law for Federal employees are appointed by
the President with the advice and consent of the Senate.
Maryland created the Public School Labor Relations Board to administer the State
law governing collective bargaining with school employees. Although all 5
members of the board are appointed by the Governor with the advice and consent
of the Senate, 2 members must be appointed from a list of candidates submitted by
a union and 2 members must be appointed from a list of candidates submitted by
an organization of school boards or school superintendents. However, the 5
th
member must represent the public and is appointed by the Governor with the advice
and consent of the Senate without involvement of union or management. See Md.
Education Code §6-803. The State Labor Relations Board created to administer the
collective bargaining law governing Maryland State employees has a similar
composition. See Md. State Personnel and Pensions Code §3-202.
c.
Separating Mediation and Arbitration
-
Each of the current County laws
employs same person med-arb where one person is selected to both mediate and
arbitrate the dispute if mediation is unsuccessful. Under the National Labor
Relations Act covering private sector employees, collective bargaining impasses
are resolved through mediation and, if unsuccessful, economic force - either by
strikes or lockouts. Mediation is offered by the Federal Mediation and Conciliation
Service (FMCS). FMCS mediators have no authority to impose a settlement.
In
Maryland, the law governing school employees requires a separate mediator to
resolve an impasse. If mediation is unsuccessful, arbitration is held before the
Public School Labor Relations Board. See Md. Education Code §6-408. The State
law governing Maryland State employees requires the parties to submit an impasse
to fact-finding by a neutral mediator who has no authority to impose a resolution.
If either party objects to the recommendations of the fact-fmder, the
recommendations are submitted to the Governor, the union, and the General
Assembly. See Md. State Personnel and Pensions Code §3-501.
Howard County provides for arbitration of an impasse in bargaining with police or
fire employees. The arbitrator may try to settle the dispute, but is not a mediator.
For all other Howard County employees, impasse resolution consists ofmandatory
non-binding fact-fmding with no arbitration. See Howard County Code §§ 1.608
and 1.609. Baltimore County also separates the role of mediator and arbitrator. See
Baltimore County Code §§4-5-404 to 4-5-407. Anne Arundel County separates the
2
Unions would retain their ability to lobby the Executive and Council as to these appointments and attempt to
influence these elected officials through the ballot box.
5
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role of mediator and non-binding fact-finder for all non-uniformed public safety
employees. Anne Arundel County provides for a separate mediator and arbitration
panel for uniformed public safety employees. See Anne Arundel Code §§6-4-11 0
and 6-4-111. Prince George's County similarly splits the role of mediator and
arbitrator. See Prince George's County Code §§ 13A-lll and 13A-Ill.01.
d.
Qualifications of an Impasse Arbitrator -
The Bill would establish a 3-person
arbitration panel with a neutral chair who is a retired judge. If the parties cannot
agree, they must select a retired judge from a panel appointed by the Council. The
State of Maryland requires impasse arbitration before the Public School Labor
Relations Board. The Board is chaired by a public member appointed by the
Governor who must have "experience
in
labor relations." Anne Arundel, Prince
George's, and Baltimore County use labor arbitrators from a list provided by AAA
or the FMCS to resolve an impasse in bargaining.
This packet contains:
Expedited Bill 24-16
Legislative Request Report
June 14 Memo from Council President Floreen
County Attorney Bill Review Memorandum
Resolution No. 16-1434
ORC Recommendations on Collective Bargaining
GO
Committee Request to the Executive on June
28,
2013
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Expedited Bill No. .=;24;!....-..:.,::16::.-_ _ __
Concerning: Collective Bargaining ­
Impasse Procedures - Amendments
Revised: July
1,
2016
Draft No.
.JL.
Introduced:
June 21, 2016
Expires:
Decernber21,2017
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)
increasing the time for collective bargaining;
(2)
modifying the scope of collective bargaining;
(3)
modifying the selection procedure and qualifications for labor relations administrator
and pennanent umpire;
(4)
require public disclosure ofeach party's initial bargaining position on major economic
proVIsIOns;
(5)
separating the role ofmediator and arbitrator in resolving a bargaining impasse;
(6)
establishing an arbitration panel to serve as arbitrator;
(7)
requiring the evidentiary hearing before the arbitration panel to
be
open to the
public;
.
(8)
modifying the criteria for an arbitration panel to consider; and
(9)
generally amending the collective bargaining laws for County employees.
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 33-103A
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 unqffected 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)
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:
(1) Adopt regulations under method (1) ofsection 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 [shall1 must defer to state
procedures in those matters which are governed by the law
enforcement officers bill ofrights, [article 27, sections 727 et seq.,
Annotated Code of Maryland1 MD Code, Public Safety, §§3-1 0 1
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 confirmation by the
County Council, [serve1 for a term of 5 years.:. [, and1 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 ofthe 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
ill
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
81
(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;]
89
[(9)] [To] take actions to carry out the mission of government in
situations of emergency;
[(10)]
(2)
[To] transfer, assign and schedule
employees[.]~
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.QQ)
determine the size, grades, and composition of the work force;
93
.an
@
set the standards of productivity and technology;
establish
employee
performance
standards
and
evaluate
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employees, except that evaluation procedures shall be
~
subject for
bargaining;
Q..l)
make and implement systems for awarding outstanding service
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increments, extraordinary performance awards, and other merit
awards;
100
(ill
introduce new or improved technology. research, development,
and services;
101
102
.(1i)
control and regulate the use of machinery, equipment, and other
property and facilities ofthe employer, subject to subsection (a)(6)
of this section;
103
104
105
(lQ)
maintain internal security standards;
.Q1) 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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aID
suspend, discharge, or otherwise 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; and
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(l2)
issue and enforce rules, policies, and regulations necessary to
£!!!!Y
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 1) October 15 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)
1..2..
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
135
(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 during the period from January 20 to
February [1]
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U.
Fees, costs and expenses of the [impasse neutral shall]
mediator must
be
shared equally by the employer and the certified
representative.
(b)
(l)
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 [fmal offer which must consist either of a complete draft
of a proposed collttctive bargaining agreement or a] complete
package proposal, [as the impasse [neutral chooses] including!!
fmal offer on each item that remains in dispute. [If only complete
package proposals are required, the] The [impasse neutral]
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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 final 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
Qy
£!
final
offer:
(i)
[the limits on the County's ability to raise taxes under
State law and the County Charter] assuming no
increase in any existing tax rate or the adoption ofany
181
182
183
184
185
186
187
188
(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
f:\law\bills\16~lective
bargaining - impasse procedures - amendments\bill9.docx
£s)
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ExPEDITED BILL
No.
24-16
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
(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 [mal 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 comparison 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 final offer that [he or she] the
panel selects;
(B)
select an offer based on the contents of that offer;
f:\Iaw\bills\1
~ective
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{9":J
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EXPEDITED BILL
No.
24-16
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
(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 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 ofratification 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).
234
235
236
237
238
239
240
(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]
~
f:\law\bills\1~ive
bargaining - impasse procedures - amendments\bill9.docx
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ExPEDITED BILL
No. 24-16
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
(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 33-1 03A 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 fmal offer on only the reopener matter; and
(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.
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.
f:\IaWlbills\1~ive
bargaining - impasse procedures - amendmentslbill9.docx
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ExPEDITED BILL
No.
24-16
268
269
270
271
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
33-103. Labor relations administrator.
*
(b)
*
*
(1)
The Administrator must be a person with experience [as a neutral
in the field of labor relations1 conducting adjudicatory hearings,
such as g 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 tenn of 5 years [from
a list of 5 nominees agreed upon by any certified representative(s)
and the Chief Administrative Officer1. The [list1 Executive may
[include] reappoint the incumbent Administrator. [If the Council
does not con finn the appointment, the new appointment must be
from a new agreed list of 5 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.
*
*
*
*
287
288
289
290
291
292
293
*
(c)
Employer rights.
[This article and any agreement made under it shall not
impair the right and responsibility of the employer to perform1 All
elements ofthe employment relationship that are not expressly identified
as g mandatory subject of bargaining in subsections
00
or
.Qi}
are
employer rights that are not subject to bargaining. Employer rights
include the following:
f:\law\bi11s\1~ective
bargaining -
impasse procedures -
amendments\biI19.docx
t;;)
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EXPEDITED BILL
No.
24-16
294
295
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
(1)
Determine the overall budget and mission ofthe 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 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 determines 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.
performance
standards
and evaluate
314
315
316
317
318
319
(12) Establish employee
employees, except that evaluation procedures shall be a subject for
bargaining.
(13) Make and implement systems for awarding outstanding service
increments, extraordinary performance awards, and other merit
awards.
t\law\bills\1
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13­
ive bargaining - impasse procedures - arnendrnents\bill9.docx
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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
inconsistent with this article, federal or state law, or the terms of
the collective bargaining agreement.
339
340
341
342
343
344
*
(a)
*
*
33-108. Bargaining, impasse, and legislative procedures.
Collective bargaining must begin no later than [November I] October
U
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]
15. The employer must publish the
345
346
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bargaining. impasse procedures· amendmentslbill9.docx
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ExPEDITED BILL
No. 24-16
347
348
349
350
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
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 ifit 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 of any year in which the employer and the certified
representative bargain collectively, the Labor Relations Administrator
must appoint a [mediator/arbitrator] mediator, who may be a person
recommended by both parties. The [mediator/arbitrator] mediator must
be available from January 2 to June 30. Fees and 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
366
367
368
369
370
371
372
[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
determination.
CsJ
f:\law\billS\1~~ctive
bargaining - impasse procedures - amendments\biIl9.docx
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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
finds,
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
selected 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 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
f:\law\bills\
~
/_""'"
-16
llective bargaining· impasse procedures· amendments\bill 9.docx
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EXPEDITED BILL
No.
24-16
399
400
401
402
403
404
405
406
407
408
409
410
[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 final 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
411
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 revenue 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
f:\law\bills\1
a
17 ­
...
lective
bargaining - impasse procedures - amendments\bill9.doc.x
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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] If the 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 of other Montgomery County employees; and.
(E)
wages, benefits, hours, and other working conditions of
similar employees of private employers in Montgomery
County.
(6)
The offer selected by the [mediator/arbitrator] arbitration panel,
integrated with all previously agreed on items, is the fmal
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
444
445
446
447
448
449
450
. f:llaw\bills\1
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a
- 18­
iva bargaining - impasse procedures - amendments\bill9.docx
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exPEDITED BILL
No. 24-16
451
452
453
454
455
456
457
458
459
460
461
462
463
464
465
466
467
468
469
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 g 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
confinnation 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 confinnation by the CounciL Ifthe Council does
not con finn an appointment, the Executive must appoint another person
from a new agreed list of 5 nominees and submit that appointee to the
Council for confinnation.] The Administrator serves a tenn of 5 years.
[An incumbent Administrator is automatically reappointed for another 5­
year tenn, subject to Council confumation, unless, during the period
between 60 and 30 days before the tenn 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
470
471
472
473
474
475
476
477
*
33-152. Collective bargaining.
*
*
f:\law\bills\1
G
-19
lIective bargaining· impasse procedures· amendments\bill9.docx
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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:
(I)
determine the overall budget and mission ofthe 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 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 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)
(10)
(11)
transfer, assign, and schedule employees;
determine the size, grades, and composition ofthe work force;
set standards ofproductivity and technology;
f:\law\biIlS\~lective
bargaining - impasse procedures - amendrnents\bill9.docx
Q
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ExPEDITED BILL
No.
24-16
505
506
507
508
509
510
511
(12) establish
employee
performance
standards
and
evaluate
employees, but evaluation procedures are subject to bargaining;
(13) make and implement systems for awarding outstanding service
increments, extraordinary performance 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 terms 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.
!£J
f:\Iaw\bills\1~ive
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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
550
551
552
553
(a)
Collective bargaining must begin no later than the [November 1] October
Ii
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 of any 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
be available from January 15 to February
[1]
Ii.
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
554
555
556
557
f:\law\bills\1
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ExPEDITED BILL
No.
24-16
558
559
560
561
562
563
564
565
566
567
568
569
570
571
572
573
574
575
576
the parties have not agreed on a collective bargaining agreement by
[January 15] 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 ofthe 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 neutralJ mediator must refer the dispute to an arbitration panel
selected under Section 33-1 03A. The arbitration panel must require the
parties to jointly submit all items previously agreed on, and each party to
submit a fmal offer [consisting of proposalsJ on each item not agreed
upon. Neither party may change any proposal after it is submitted to the
[impasse neutral] arbitration panel as a fmal offer, except to withdraw a
proposal on which the parties have agreed.
(h)
The [impasse neutralJ arbitration panel may require the parties to submit
evidence or present oral or written arguments in support of their
proposals. The [impasse neutralJ arbitration panel may hold a hearing at
a time, date, and place selected by the [impasse neutral1 arbitration panel.
577
578
579
580
581
582
583
584
The hearing must [not]
be
open to the public.
(i)
On or before February [1]
Q,
unless that date is extended by written
agreement of the parties, the [impasse neutral] arbitration panel must
select~
without compromising, the final offer that, as a whole, the
[impasse neutralJ 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 toJ determine the ability ofthe County to [pay for
f:\law\bills\1~ive
bargaining· impasse procedures· amendments\biI19.docx
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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
Qy
the final offers:
(A)
[the limits on the County's ability to raise taxes under State
law and the County Charter] assuming no increase in any
existing tax rate or the adoption of any new tax;
(B)
[the added burden on County taxpayers, if any, resulting
from increases in revenues needed to fund a final offer]
assuming no increase in revenue from an ad valorem tax on
real property above the limit in County Charter Section 305;
and
(C)
considering the County's ability to continue to provide the
current [standard) level of all public services.
(2)
[After evaluating the ability 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
f:\law\biIIS\~ective
bargaining - impasse procedures - amendments\bill9.docx
t;0
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ExPEDITED BILL
No.
24-16
611
612
613
(E)
wages, benefits, hours, and other working conditions of
similar employees of private employers in Montgomery
County.
614
615
616
617
618
619
620
621
622
623
624
625
626
627
628
629
630
631
632
633
·634
635
636
637
0)
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 fmal 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:
W
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.
(Q)
Panel.
The Council must appoint
~
retired judges for
~
5-year term to
serve as an arbitration panel neutral member if the parties are unable to
agree on
~
neutral member.
f:\law'lbiIlS\1~ective
bargaining - impasse procedures - amendments\bill9.docx
G-\
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EXPEDllED BILL
No. 24-16
638
639
640
641
642
643
644
645
646
647
648
649
650
651
652
653
654
655
656
657
658
659
660
W
Composition.
An
arbitration panel contains
J
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
~
retired
judge. If they are unable to agree, the parties must select
~
retired judge
from
~
panel appointed
Qy
the Council under subsection
(hl
Qy
alternate
strikes with the employee representative going first. The neutral member
must not be the mediator who attempted to mediate the impasse.
@
Term.
An arbitration panel selected under subsection
(£}
serves until the
Council takes final action on the collective bargaining agreement at
Impasse.
ill
Procedure.
The neutral member is the panel chair and must preside at
any hearing. A majority of the arbitration panel must vote for
~
decision
resolving an impasse.
ill
Compensation.
The employer and the certified representative must
:rmY
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.
Sec. 3.
Expedited Effective Date.
The Council declares that this
legislation is necessary for the immediate protection ofthe public interest. This Act
takes effect on the date when it becomes law.
661
Approved:
662
Nancy Floreen, President, County Council
Date
f:\law\bills\1~ective
bargaining - impasse procedures - amendments\biIl9.docx
Q
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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.
f:\law\bills\1624 collective bargaining - impasse procedures - amendments\Jrr.docx
21
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MONTGOMERY COUNTY COUNCil
ROCKVILLE, MARYLAND
NANCY FLOREEN
CO'.JNCJL PRESIDENT
MEMORANDUM
June 14,2016
TO:
Councilmembers
FROM:
SUBJECT:
Nancy
FI04';;;;'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 of our 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 M."'-RYLAND AVENUE, 6TH FLOOR·
ROCKVILLE, MARYLAND 20850
240n77-7959 •
FAX
2401777-7989
COUNCILMEMBER,FLOREEN@MONTGOMERYCOUNTYMD.GOV
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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, many 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 of the
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.
2
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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 final 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 fmal 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
Tlie Bill would create a 3-person arbitration panel that includes 1 member appointed by the
Executive, 1 member appointed by the union, and a neutral 3
rd
member. The neutral3
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, t!Ie 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 of the 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 57-1 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;
(U) 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.
3
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Isiab Leggett
County Executive
Marc P. Hansen
County Attorney
MEMORANDUM
TO:
Shawn Stokes. Director
Office of Human Resources
FROM:
DATE:
Edward
B.
Lattner,
ChiefCi
Division of Government Operations
June 29,2016
Br
........
RE:
Bill 24-16E, Collective Bargaining Impasse 'Protedures - Amendments
-
.....
_-_
__
.. .. .
•.
..
.....;
~~.---~~---
Bill 24-16E would accomplish the following:
• Increase transpare1l¢Y in certaitlaspects of the collective bargaj:nmgprocess;
• Extend by two weeks the time available to
the
parties for collective bargaining;
• Make
the list ofemployer, or "management," rights the same
in
ttilthree collective
bargaining laws and. clarify that any SUbject not expressly identified asa mandatory
subject ofbargaining is an employer
right,
which is not subject to bargaining;
• Repeal the union's role
in
the County Execlltive's appointment of Labor Relati<,lnS
Administrators (referred to as the Permanent Umpire in the police collective bargaining
law) andchtmge the q1lalifications of the LRA from a person
with
experience as a neutral
party
in
labor relations to a person who is experienced conductingacIjlidicatory hearings,
such as a retired judge;
.
• Separate the role of the mediator/arbitrator
into
two separate roles-<me person will serve
as the mediator and another person will serve as an impasse arbitrator;
• Make the impasse arbitrator a member
ofa
three-person impasse arbitration panel, with
each, party selecting one member and the parties selecting
a
retired judge as the "neutral;'
. ..
impasse arbitrator;
and
10l MOQroe
street.
~kvil1e,.
M!lI'Y1IlJld208S()..2$8Q
(240)
7n"6735
.,
TrY
(240)
771~2S4S
., FAX (24Q) 771-6705 • Edward.Lattner@montgomerycountymd.gov
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Shawn Stokes
June
29, 2016
Page 2
• Amending the criteria for the impasse arbitration panel to consider in selecting one of
the
parties' last
best
fi.nal
offer.
.
Robert Drummer provided a more detailed
summary
of Bill 24-16E
in
his introduction
packet.
The Bill is
legally
sufficient.
If
YOtl
have anyconoems.
or questions
cOncerning
this
memorandl.1Il1
pl~
call me.
ebi
eo:
Robert
Ii.
Drummer, Senior Legislative
Attom~y
BQnnie
Kirkland,
Assistant
CAD
Marc
P. Hansen,
County Attorney
Silvia
IGnch~
Chief, Diyisicn ofHuman
Resource8~
OCA
16-004023
BlJ124.16E OCA
Mriew
@
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Resolution No.:
~~~------------
16-1434
Introduced:
July 20,2010
Adopted:
July 20,2010
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President Floreen and Councilmembers Berliner and Trachtenberg
SUBJECT:
Agpointments to the Montgomery County Organizational Reform Commission
Backgrouod
1.
Resolution No. 16-1350 adopted on May 18,2010, established the Montgomery County
Organizational Reform Commission to make recommendations for potential reorganization
or consolidation of functions perfonned by County government and County-funded
agencies.
The Commission must solicit suggestions for potential reorganization or consolidation of
functions perfonned by County government and County-funded agencies from: elected
officials; County residentS; business and community leaders; County and agency
employees; bargaining unit representatives; and other stakeholders.
The Commission must draft and adopt written criteria to evaluate which suggestions
merit further consideration by the Commission. The criteria must include: a minimum
level of potential cost savings (for example, $1 million per year); a standard for ease of
implementation; and a measure of acceptable service level impact.
No later than September
30, 2010,
the Commission must submit a status report of its progress
to the Council and the Executive outlining its progress to date and its work plan through
January 31, 2011. Executive staff and Council staff must provide support to the
Commission.
The Commission must submit its final report to the Executive and Council no later than
January 31, 2011. The report must contain the Commission/s recommendations to reorganize
or consoJidate functions performed by County government or County-funded agencies. For
each recommendation for reorganization or consolidation, the Commission's report must
include the rationale and estimated cost savings associated with implementing the
recommendation. Any organizational proposaJ for County government in the Commission
report must
take
the fonn of a reorganization plan that the Executive could submit to the
Council under Charter §217.
2.
3.
4.
5.
@
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Page 2
Resolution No.: 16-1434
Action
The County Council for Montgomery County, Maryland approves the following
resolution:
I.
The following individuals are hereby appointed to Montgomery County Organizational
Reform Commission by the County Council:
Members
1.
Scott Fosler
2.
Daniel Hoffman
3.
VemonH. Ricks, Jr.
4. LenSimon
2.
The following individuals
are
hereby appointed to Montgomery County Organizational
Reform Commission by the County Executive:
Members
5. M. Cristina Echavarren
6. Joan Fidler
7. Susan Heltemes
8. Richard Wegman, Co-Chair
3. The following individuals
are
hereby designated as Co-Chairs to the Commission:
1.
2.
Mr. Vemon
H.
Ricks, J r is designated Co-Chair by the County Council.
Mr. Richard Wegman designated Co-Chair by the County Executive.
This is a correct copy ofCouncil action.
Linda M. Lauer, Clerk ofthe Council
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Montgomery County Organizational Reform Commission
Collective Bargaining
Statement oftke Issue
The Council's Office of Legislative Oversight (OLO) recently released a comprehensive
report on the County's tax-supported revenue and expenditure trends over the past 10 years,
as well as those projected for the next six years.
4
OLO concluded that the County has a
"structural budget gap," indicating that as currently projected, future spending would exceed
expected revenue generation on a "persistent and recurring basis."
The historical increase in personnel cost is described in detail in OLO Report 2011-2.
According to the report, a 10-year -comparison of personnel cost versus the number of
work years indicates that the primary driver behind the increased cost is a higher average cost
per employee, rather than a larger workforce. Employee compensation and benefits currently
account for 82% of the County's total tax-supported spending. According to the OLO report,
from FY02 to FYll, the County's tax-supported spending - excluding debt service ­
increased 59%, from $2.1 billion to $3.4 billion.
5
During this same 10-year period, inflation
was 29010, the County's population grew 12%, and median household income increased 21
%.
Personnel costs for the County government, MCPS, Montgomery College, M-NCPPC and
HOC are largely determined by collective bargaining with employee unions. With unions
representing the large majority of employees from these County tax-supported agencies,
collective bargaining is one of the most important government processes. For this reason, we
explored the possibility of making changes to the collective bargaining system.
The ORC was faced with a limited duration and limited resources to evaluate all processes
that might merit analysis. We are aware that many of these should be addressed in the future.
However, we chose collective bargaining because of the enormous impact collective
bargaining agreements have on the County's fiscal situation. The ORC encourages the
Council to continue to seek savings and efficiencies by reviewing these other processes.
Please see Appendix II at the end of
this
report, indicating some issues that we would suggest
be considered for future review.
Discussion oftke Issue and Recommendations
The ORC's review of the collective bargaining system
was
governed by a desire to create a
more equitable balance between the needs of County tax-supported employees and the needs
of County residents. Over the past two years, due to the severity of the budget crisis, the
Council has rejected some of the economic provisions in negotiated collective bargaining
agreements with each County employee union. In FY 11, the Council modified the furlough
proposed by the Executive and adopted a budget that included a progressive furlough for all
County Government employees. These "take-backs" inevitably lower employee momle over
OLO Repon 2011-2,
Achieving a Structurally Balanced Budget in Montgomery County (Parts I and
/I),
is
available on the Internet at: http://www.montgomerycountymd.gov/contentlcouncil/olo!reponslpd
f/201
1-2.pdf.
sOLO, Part
J,
pg 2
4
- 33­
@
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Montgomery County Organizational Refonn Commission
time. We believe that a collective bargaining system that results in more affordable
contracts. without the need for last-minute take-backs. will ultimately lead to a more stable
system and higher employee morale. County services can also be enhanced through more
affordable labor contracts.
We did not limit our review to recommendations that can be implemented with little
difficulty. Some recommendations can be implemented by the Executive without a change in
current law. Some recommendations would require the enactment of legislation by the
Council. Finally, some recommendations would require amendments to State law. Although
we understand
that
changes to State law (such as the State Maintenance of Effort law,
pertaining to public school funding) often require the consensus of elected officials - from
lawmakers both within
and
outside Montgomery County - the County's growing structural
budget gap requires that we consider all possible solutions.
Summary of Collective Bargaining Recommendations'
};>
We recommend an increase in the public's ability to participate in collective
bargaining negotiations by:
I) Publishing the opening negotiating proposals from both the County and each
County employee union;
2) Requiring an evidentiary hearing before the arbitrator
to
be open to the public;
and
3) Requiring the Council to hold a public hearing on the terms of the negotiated
agreement before taking action on it.
)il>
We also recommend eliminating the Executive's obligation to conduct "effects
bargaining" with the union representing police officers, thereby making the scope
ofbargaining consistent under each collective bargaining law.
The resolution of bargaining impasses through arbitration greatly affects the
collective bargaining process. We support the Council's recent enactment of
Expedited Bill 57-10, Personnel - Collective Bargaining - Impasse Procedures on
December 14,2010, which will require the arbitrator to evaluate
and
give the highest
priority to the County's ability to pay for
the
final offers before considering a
comparison of wages and benefits for other public employees. The Council's
Government Operations
and
Fiscal Policy (GO) Committee recommended approval
of the bill with.an amendment on December 7, 2010.
};>
Although the bill was later enacted by the Council without this amendment, we
recommend that the Council reconsider this amendment that would require the
arbitrator to assume no increase in taxes when determining the affordability ofthe
final offers.
6
Reservation o(Commissioner Dan Hoffman! I abstained from approval of this recommendation on the
basis that the changes being recommended were beyond the
scope
outlined
by
the resolution creating the
ORe.
The abstention
was
not due
to
the merits ofthe recommendation.
- 34­
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Montgomery County Organizational Reform Commission
};>
We
also
recommend changing the method ofselecting the arbitrator to enhance the
accountability of the arbitrator to the taxpayers.
We
recommend a three-person
panel, with each party selecting one arbitrator and the third neutral arbitrator selected
by the parties from a list of persons appointed by the Council to four-year terms.
Public Accountability in Collective Bargaining
Collective bargaining sessions with County government employee unions are held in
meetings closed to the pUblic. The proposals and counter-proposals made by each side are
never made pUblic. If the parties reach impasse and invoke interest arbitration, the
evidentiary hearing conducted by the arbitrator must be closed to the pUblic. The terms of a
negotiated agreement or an arbitrator's award are not made public until they are sent to the
Council for approval. The intent of this confidentiality is to encourage the parties to speak
freely without fear of their statements being used against them. Attendance at negotiating
sessions by members of the public and the news media could inhibit the free and open
discussion necessary to resolve disputes. However, open meetings could also inhibit the
parties from making unrealistic demands and statements.
Collective bargaining in open
meeting~
has been tried in Maryland. In
1981,
the Carroll
County Board of Education adopted a resolution that all collective bargaining meetings with
the union representing public school teachers would
be
conducted in pUblic. The union
challenged the Board's resolution in Court, alleging that it was a failure to bargain in good
faith. Despite the authority to conduct closed meetings to discuss collective bargaining in the
Maryland Open Meetings Law, the Court of Appeals held that the Board could insist on open
meetings without violating the duty to bargain in good faith. See
Carroll County Education
Association, Inc. v. Board ofEducation o/Carroll County,
294
Md.
144 (1982).
More recently, Washington County Public Schools required the school unions to participate
in open collective bargaining sessions in 2006. The parties eventually agreed to ground rules
for open bargaining that provide for a closed session at the beginning of each meeting to
explore new ideas, followed by an open meeting. All proposals and counter-proposals were
made public in the open meeting.
We do not believe that all collective bargaining sessions should be open to the public. The
parties must be able to speak freely without fear of each statement being published in the
news media in order to negotiate in good faith. However, the current system eliminates
almost all public input into the collective bargaining process.
};>
We recommend a modest increase in public accountability that would continue to
permit the parties to speak freely during negotiations.
Specifically, we recommend that:
1. The initial proposals and counter-proposals in collective bargaining negotiations
from both parties should be publicly posted on the County's website for public
comment. The negotiated collective bargaining ground rules with each County
employee union should contain a final date for each party to submit all of their
proposals for bargaining. We recommend posting the positions of each party, as
- 35­
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Montgomery County Organizational Reform Commission
of that date.
This could be done by the Executive without changing current law
or, alternatively, by the Council amending County law.
7
2. The Council should conduct a public hearing on all collective bargaining
In
order to
agreements before the Council's annual budget hearings.
accommodate this additional public hearing, we recommend that the statutory
time periods for declaring impasse and completing arbitration be moved back by
two weeks.
The Council would have to amend current law to change these dates.
The Council has the current authority to hold a public hearing on collective
bargaining agreements, but there is often not enough time to do this.
The following chart shows the current statutory dates and our recommended new
dates:
• Bargaining Law
Police
General County
Employees
• Fire and Rescue
Current
Impasse Date
January 20
February 1
Januar:"
'J
1
<:
~-
Current
Arbitration Date
February 1
February 15
• February 1
New
Impasse
January 6
January 15
January 2
New Arbitration
Date
January 18
February 1
January 17
The evidentiary hearing before the arbitrator should
be
open to members of the public
and news media. An open meeting would increase the ability of the public to provide
useful comment on the decision at a public hearing before the Council.
This would
require a change in County law.
The Commission believes that it would make equal sense to provide for greater public input
in the collective bargaining process with union employees of MCPS, Montgomery College,
and the Maryland-National Capital Park and Planning Commission. However, these
processes are governed by state law. We would support changes to state law that parallel the
Reservation or Commissioner Susan Heltemes: Historically, the integrity ofthe collective bargaining
process has runctioned under stringent guidelines that rely on the integrity ofall persons involved in the
negotiations to maintain confidentiality to the process until a final product/agreement is attained. The final
product is open to the public and hearings are held by the Montgomery County Council. Initial disclosures or
proposals would likely establish unrealistic expectations not only for management, but also for employees since
initial proposals are usually not where the negotiations come down at the conclusion ofbargaining. If opening
proffers were open to the public, it is likely that outside input could obstruct the bargaining process and interfere
with tight timelines and strategy. Such obstruction could alter the negotiating process and ultimately end in
more arbitration and deterioration of what has become a respected form of negotiation for our public sector
employees.
It
is important to note that Park and Planning employees, as well as HOC, Montgomery College
and MCPS employees, function under state guidelines that are different than those for the firefighters, police
and MCGEO. Furthermore, it seems unlikely
that
making opening proposals from the County and unions prior
to negotiating would actually result in savings. Such proposed savings are mere conjecture and not worth the
effort of upsetting a time honored process that works.
7
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Montgomery County Organizational Reform Commission
collective bargaining recommendations in this document, in order to increase public
accountability in collective bargaining with these agencies.
The Erosion of Management Rights
The Police Collective Bargaining law establishes the scope of collective bargaining in
County Code §33-80. Similar to the collective bargaining laws for Fire and general County
employees, the Police Collective Bargaining law requires the Executive to bargain over
wages, benefits, and working conditions. Section 33-80(b) also establishes a list of
"Employer rights" that the Executive does not need to bargain. However, unlike the
collective bargaining laws for Fire and general County employees, §33-80(a)(7) requires the
Executive to bargain over the "effect on employees of the employer's exercise of rights listed
in subsection (b)." This provision is generally referred to as "effects bargaining." For
example, §33-80(b)(3) grants the Executive the employer's right to "determine the services to
be rendered and the operations to be performed." However, under effects bargaining the
Executive would have to bargain with the union over the effect on employees of the
Executive's decision to modify the services performed. In practice, "effects bargaining" has
become the exception that makes most management decisions subject to bargaining.
"Effects bargaining" has
hampered
the ability of the Police Department to issue directives to
govern how police officers must operate. For example, several years ago, the Police
Department had to bargain with the FOP over a directive to implement the new computerized
police report writing system. This bargaining delayed the implementation of a new system
that County management established to improve efficiency. The FOP has recently delayed
the implementation of all directives by refusing to respond to them.
»
We recommend amending §33-BO(a)(7) to make the scope ofbargaining consistent
with the scope ofbargaining in the collective bargaining laws for Fire and general
County employees.
Public Accountability
in
Interest Arbitration
1. Change the criteria for the arbitrator to use to resolve a collective bargaining
impasse.
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 §51OA requires the same for firefighters. Charter §511
authorizes, but does not require, the Council to enact a collective bargaining law for other
County employees that may include interest arbitration or other impasse procedures. All of
these Charter provisions require any collective bargaining law enacted by the Council to
prohibit strikes or work stoppages by County employees. The Council has enacted
comprehensive collective bargaining laws with interest arbitration for police (Chapter 33,
Article V), firefighters (Chapter 33, Article
X)t
and other County employees (Chapter 33,
Article VII).
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Montgomery County Organizational Reform Commission
All three County collective bargaining laws require final offer by package arbitration
requiring the arbitrator to select the entire final offer covering all disputed issues submitted
by one of the parties. The arbitrator is a private-sector labor professional jointly selected by
the Executive and the union. Since 1983, there have been 17 impasses resolved by interest
arbitration. One of the impasses involved firefighters, one involved general County
employees, and the other 15 involved the police.
The arbitrator selected the final offer of the International Association of Fire Fighters (lAFF)
in the one impasse with the firefighters and selected the County offer in the one impasse with
general County employees represented by the Municipal and County Government Employees
Organization (MCGEO). The arbitrator selected the FOP offer in 11 of the 15 impasses with
the police. The arbitrator selected the County offer over the FOP offer three times,8 and the
County agreed to the FOP offer after the arbitration hearing one time. One explanation for
these one-sided results is a lack of public accountability in the interest arbitration system used
to resolve impasses with County unions.
One of the arguments often raised in challenges to interest arbitration laws is the lack of
accountability to the pUblic. Legislatures enacting interest arbitration laws have responded to
this criticism in a variety of ways.
An
Oklahoma law authorizes a city council to call a
special election and submit the two proposals to the voters for a final decision, if the
arbitrator selects the union's final package. The Oklahoma Supreme Court upheld this
unusual provision in
FOP Lodge No.
165
v.
City 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 fmdings of fact, and subject the decision to judicial review for abuse of
discretion, fraud, or misconduct. See,
Anchorage
v.
Anchorage Dep't of Employees Ass tn.
839 P. 2d 1080 (Alaska 1992).
We note that the Council enacted Expedited Bill 57-10. which modifies the criteria used by
the arbitrator in resolving collective bargaining impasses with each County employee union.
We support this legislation as a first step in the process of increasing public accountability in
the arbitration process used to resolve impasses, but we recommend an additional
amendment.
Under the County collective bargaining laws before the enactment of Bill 57-10, an arbitrator
could only consider:
a. Past collective bargaining contracts between the parties, including the past bargaining
history that led to such contracts, or the pre-collective bargaining history of employee
wages, hours. benefits and working conditions;
11
The FOP appealed two ofthe three decisions in favor ofthe 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.
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Montgomery County Organizational Reform Commission
b. Comparison of wages, hours, benefits and conditions of employment of similar
employees, of other public employers, in the Washington Metropolitan Area and in
Maryland;
c. Comparison of wages, hours, benefits and conditions of employment of other
Montgomery County personnel;
d. Wages, benefits, hours and other working conditions of similar employees of private
employers in Montgomery County;
e. The interest and welfare of the public; and
f. The ability of the employer to finance economic adjustments and the effect of the
adjustments upon the normal standard ofpublic services by the employer.
The problem with these criteria can be seen in the most recent arbitration awards under the
County collective bargaining laws. For example, Arbitrator David Vaughn described his
understanding of the statutory criteria as follows:
"This provision does not require that any particular factor be considered or
that all of them
be
considered It simply identifies the factors that I may
consider. Thus, I am free to determine whether any particular factor or
factors weigh more heavily than others ... "
(MCGEO Arbitration Decision of
March 22, 2010)
In the 2010 Police arbitration decision, Arbitrator Herbert Fishgold, applying these criteria,
found that the FOP's last offer for a 3.5% step increase, at a cost of $1.2 million, and a
reinstated tuition assistance program, at a cost of $455,000, was more reasonable than the
County's offer of no pay increase or tuition assistance. Mr. Fishgold-found that the FOP had
already given up a previously negotiated 4.5% cost-of-living increase each of the past two
years and had, therefore, done enough to help balance the County's budget. The Council
subsequently rejected both of these economic provisions and required all County employees
to
take furloughs, including police officers, in order to close an unprecedented budget deficit.
The arbitrator should consider the funds available to pay personnel costs before considering
comparative salaries and past collective bargaining agreements. The bill, as enacted, requires
the arbitrator to evaluate and give the highest priority to the County's ability to pay before
considering the other five factors. The amendment that the Council ultimately rejected would
have gone further by requiring the arbitrator to determine first if the final offers were
affordable without raising taxes or lowering the existing level of public services. Although
we support the bill as enacted without this amendment, the amendment would have added
important guidance to the arbitrator
to
determine affordability based upon existing resources
only.
~
We
recommend new legislation that would include the amendment that was
originally supported by the Councirs Government Operations and Fiscal Policy
Committee on December
7.
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Montgomery County Organizational Reform Commission
2. Change the method of selecting the arbitrator.
All three of the County's collective bargaining laws require the appointment of a professional
labor arbitrator who is mutually selected by the Executive and the union. Professional labor
arbitrators must avoid the appearance of favoring one side or the other in order to continue to
be selected.
It
is especially important for a professional labor arbitrator to avoid a veto by a
national union with affiliates representing public employees throughout the nation. The labor
arbitrator is accountable to the parties but not to the taxpayers.
The Baltimore County Code has a different system for resolving disputes with unions
representing non-pUblic safety employees. The Code requires the appointment of a
permanent arbitration panel consisting of five members serving four-year terms. Three
members are appointed by the Council, one by the Executive, and one by the certified
employee organizations. The members serve without compensation. The law provides for
mediation before a professional mediator provided by the Federal Mediation and Conciliation
Service, and fact-finding by a neutral selected from a panel of experts provided by an
impartial third-party agency. If the parties are stilI unable
to
resolve the dispute, the
arbitration panel conducts a hearing and issues an advisory decision.
The
decision of the
arbitrator is a non-binding recommendation to the Executive, who makes the final decision.
Although this system has been in place for more than 10 years, only one dispute has been
submitted to the
Board.
In 2008, a jointly selected professional labor arbitrator serving as a
fact-finder recommended the employees receive a 3% pay increase after mediation. After
reviewing the fact-finder's report and meeting with each party.
the
Arbitration Board issued a
non-binding recommendation of no pay increase. The Executive accepted the Board's
recommendation. However, the Baltimore County voters approved a charter amendment in
the 2010 general election authorizing, but not requiring, the Baltimore County Council to
enact a law requiring interest arbitration for general county employees similar to the law
governing public safety employees.
The Baltimore Sun
recently reported that the Baltimore County Council is likely to enact an
interest arbitration law for general county employees. Although
it
is likely that Baltimore
County will move away from this system. the Colorado Supreme Court, in
FOP
v.
City
of
Commerce
City,
996 P.2d 133 (Colo. 2000), held that an interest arbitration statute must
require the arbitrator
to
be
accountable to the public. The Court held
that
the statute did not
violate a provision in the Colorado Constitution requiring political accountability for a person
exercising governmental power
only
because it required Commerce City to appoint
unilaterally a permanent panel of arbitrators that could be selected by the parties to resolve an
impasse.
In New York, the Public Employees' Fair Employment Act, §209, establishes a
three~person
arbitration board to resolve an impasse between a state or local government employer and a
union representing public safety employees. Each side chooses one arbitrator and the two
arbitrators select a third neutral
party.
If the parties are unable to agree, the State Public
Employee Relations Board (PERB) provides a list of neutral arbitrators that the parties must
choose from by alternate strikes. The list is created by the PERB without input from either
party. Section 806 of the Pennsylvania Public Employee Relations Act has a similar
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Montgomery County Organizational Reform Commission
provision for a three-person arbitration board, with the third member selected from a list
provided by the State PERB if the parties are unable to agree.
Maryland, however, does not have a comprehensive State law governing collective
bargaining with State and local government employees and does not have a State PERB with
jurisdiction over County government labor relations.
9
Montgomery County collective
bargaining laws establish a single labor relations administrator for each bargaining unit to
serve as the PERB. The labor relations administrator is jointly selected by the Executive and
the union.
Montgomery County collective bargaining laws require the labor professional jointly selected
by the parties to serve as both a mediator and the arbitrator. This dual role has the advantage
of granting the mediator/arbitrator greater authority during the mediation process. A party
must seriously consider any statement about a weakness in a party's position by a mediator
who ultimately will resolve an impasse as the arbitrator. Traditional mediation promotes the
free flow of ideas between the parties, in part, because the mediator
has
no authority to
impose a resolution. This free flow of ideas is diminished when the mediator will also serve
as the arbitrator. A major advantage of the dual role is that the mediator/arbitrator can issue a
quicker decision because he or she is already familiar with the issues at impasse. This speed
is useful due to the compressed schedule for bargaining, impasse resolution, and budget
decisions. However, we believe the better alternative for both mediation and arbitration
would be to use a jointly selected mediator and a separate arbitration board.
~
We
recommend establishment of a three-person arbitration board, with each party
selecting one member and the two parties selecting a third neutral party.
If the parties are unable to agree on a third party, we recommend following the New York
and Pennsylvania model of requiring the parties to select a third party from a pre-selected list
of neutrals appointed by the Council. The persons on the list would be appointed for a four­
year term of office without requiring the concurrence of either the union or the Executive. If
the parties are unable to agree on a person from the Council's list, they would be required to
select an arbitrator through alternate strikes from the list.
Savings
As stated above, personnel costs, which mostly result from the collective bargaining process,
account for approximately $3.4 billion in the FYI) budget. The ORC believes that if the
changes in the collective bargaining process recommended below are implemented, savings
of tens of millions of dollars annually could result. We believe this would occur as:
(I)
the
collective bargaining process becomes more transparent; (2) the public takes a significantly
greater role in the decisions that determine compensation and benefits;
(3)
arbitrators are
chosen in a way that leads to more balanced outcomes; and
(4)
affordability is given
paramount consideration in both collective bargaining and arbitration.
Maryland does have a comprehensive labor relations law governing public school employees and recently
established a Maryland Public School Employee Relations Board. However, the members of this Board are
jointly selected by the employee unions and public school management.
9
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Montgomery County Organizational Reform Commission
Across all agencies, personnel costs have increased 64%, while the total number of work
years increased only I 0%.10
A~F.gate
salaries across the five agencies show a 50% rate
increase during the same period. In some cases, salaries rose significantly higher as 1hese
employees received 80% salary rate increases.
12
For the County government itself, 1he report shows that tax-supported personnel costs rose
.63%. This increase reflects a 42% increase in salaries and wages and a much higher 125%
increase
in
benefits. In addition, the report shows 1hat workyears rose only 0.4% in the same
period. The following table, using
data
from the
OLO
report, shows the dollar amounts and
percentage increases
in
the I O-year period.
Montgomery County Government
Salaries and Wages
(millions)
Benefits
U
(millions)
Total
Workyears
FY02
FYll
$518
$268
$786
7,374
$364
$119
$483
7,347
%
Chane:e
42%
125%
63%
0.4%
By contrast, as the
OLO
report states, data for state and local governments show an average
salary increase of 30% and an average benefits increase of 67%
in
the period 2001-09. Also
by contrast, data for the private sector show an average salary increase of 27010 and an
average benefits increase of44%.
14
Across
the
five agencies, total tax-supported personnel cost represents 82% of the overall
budget. The
OLO
report indicates that a 1% reduction in salaries would reduce total
personnel costs in FY12 for County government by $6.2 million. A 1% reduction in salaries
across the five agencies would reduce total expenditures by $22.9 million.
IS
Similarly, the
OLO
report indicates that a 5% salary reduction across 1he five agencies would
result in a $114.6 million reduction in the budget. By containing personnel cost increases,
the County can reduce the long-tenn compounding effect of increases that are not sustainable
under current revenue projections.
.
The rising trends in personnel costs that are comparatively higher than other government and
private industry averages and are noted above predominantly result from the collective
bargaining process.
report Part I, pg 2
II
OLO report Part
I,
pg 3
12
OLO report Part I, pg 3 and 80
13
Benefits include Social Security, group insurance, and retirement contributions but exclude retiree health
costs.
14
OLO report Part T, pg 46
IS
OLO report Part II, pg A-4
10
OLO
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Montgomery County Organizational Reform Commission
A specific fiscal impact of these changes cannot
be
quantified. However, based on FYII
budgeted amounts, even a 1
%
reduction in salaries for County government employees would
result in a $6.2 million savings in the fust year. If a 1
%
reduction in salaries were to
be
achieved across all five tax-supported agencies, the total annual savings would be $22.9
million.
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rvT
PJ('\r\)
~\"'"s5'c.c
MONTGOMERY COUNTY COUNCIL
ROCKVILLE, MARYLAND
073087
LseF
LL­
10'0
, •• \:0
MEMORANDUM
June 28, 2013
TO:
FROM:
Isiah Leggett, County Executive
Nancy Navarro, Council presi4iPt1f1(
Valerie Ervin,
Councilmemberl,~
Hans Riemer, Councilmember
~
:',~:
1
}
:~
.iFI
....
J_
.~"
:~
ii'l
.,.
,...:;
'::'
SUBJECT:
Interest Arbitration under the County Collective Bargaining Laws·:
The Council's Government Operations and Fiscal Policy Committee (00) held a
worksession on Bill 9-13, Collective Bargaining - Impasse - Arbitration Panel on June 24,2013.
Bill 9-13 would amend the impasse resolution process under each of the County collective
bargaining laws by splitting up the role of mediator and arbitrator, creating an arbitration panel of
public members, and opening up all interest arbitration hearings to the public. We were
disappointed that you did not share your position on this Bill with the Council at either the public
hearing or at the 00 Committee worksession. FOP Lodge 35 and IAFF Local 1664 each
opposed Bill 9-13 at the public hearing and suggested that the current impasse resolution process
works well.
In
your budget message to the Council last March, you explained your decision to
negotiate wage increases for County employees in FY14, in part, by alleging that arbitrator­
mandated decisions could have resulted in raises that "double or triple the rate of raises contained
in the package I negotiated with our unions."
If
you believe that the statutory system established
in the collective bargaining laws contributed to your decision, we would appreciate hearing any
recommendations you may have for improving the collective bargaining impasse resolution
process, including the changes proposed in Bill 9-13.
cc. Councilmembers
Tim Firestine
Joseph Adler
Marc Hansen
Steve Farber
STELLA B. WERNER COUNCIL OFFICE BUILDING· 100 MARYLAND AVENUE· ROCKVILLE, MARYLAND 20850
240n77-7900
TTY
240n77-7914
FAX
240n77-7989
WWW.MONTGOMERYCOUNTYMD.GOV
C
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