Maryland Maryland-National Capital Park and Planning Commission Section 5-114.1
§ 5-114.1.
(a) (1) In this section the following words have the meanings indicated.
(2) "MNCPPC" means the Maryland-National Capital Park and Planning Commission.
(3) "Agreement" means a written contract between the Maryland-National Capital Park and Planning Commission and an employee organization.
(4) "Arbitration" means a procedure whereby parties involved in a grievance dispute submit their differences to an impartial 3rd party for a final and binding decision.
(5) "Bargaining unit" includes all employees who are ranked as sergeant or below the rank of sergeant, except a confidential employee.
(6) "Collective bargaining" means the performance by the certified employee organization through its designated representative and the MNCPPC, of their mutual obligations to negotiate in good faith with respect to wages, hours, and other terms and conditions of employment.
(7) "Commissioner" means the State Commissioner of Labor and Industry or his designee.
(8) "Confidential employee" means an employee who:
(i) Assists and acts in a confidential capacity;
(ii) Formulates and effectuates MNCPPC policies with regard to collective bargaining with employees; or
(iii) Has access to confidential information not generally available to employees regarding the formulation and effectuation of policies that concern collective bargaining.
(9) "Employee" means a police officer who is ranked as a sergeant or below the rank of sergeant employed by MNCPPC.
(10) "Employee organization" means any organization of employees which has as one of its primary purposes representing law enforcement employees in collective bargaining.
(11) "Exclusive representative" means an employee organization that has been certified by the Commissioner as representing the employees of the bargaining unit.
(12) "Grievance" means a dispute concerning the application or interpretation of the terms of the collective bargaining agreement or the rules and regulations of the MNCPPC.
(13) "Impasse" means failure of the MNCPPC and an exclusive representative to achieve agreement at least 30 days before the date that the MNCPPC budget is due for submission to the Montgomery County Council and the Prince George's County Council.
(14) "Labor relations administrator" means an experienced neutral party.
(15) "Mediation" means assistance by an impartial 3rd party to reconcile a dispute arising out of collective bargaining through interpretation, suggestion, and advice.
(16) "Strike" means an employee's refusal, in concerted action with others, to report for duty, or willful absence from the position, or stoppage of work, or abstinence in whole or in part from the proper performance of the duties of employment, for the purpose of inducing, influencing, or coercing a change in the wages, hours, or other terms and conditions of employment.
(17) "Supervisory employee" means an employee who serves at the rank or title of captain and above.
(b) (1) (i) The labor relations administrator shall be appointed for a 2-year term by the MNCPPC and the exclusive representative from a list of five nominees on which they agree.
(ii) If no exclusive representative has been certified to represent employees of the bargaining unit, the MNCPPC shall appoint the labor relations administrator for a term not to exceed 1 year.
(iii) A labor relations administrator is eligible for reappointment and may be the same person as the labor relations administrator appointed under § 2-112.1 of this article.
(2) If a dispute exists that concerns the eligibility of an employee in the bargaining unit, the dispute shall be submitted to the labor relations administrator for a final and binding arbitration.
(c) (1) After July 1, 1986, an election for an exclusive representative shall be conducted by the Commissioner.
(2) A petition for an election may be submitted by:
(i) An employee organization that demonstrates that 30 percent of the police officers in a bargaining unit wish to be represented for collective bargaining by an exclusive representative;
(ii) An employee, a group of employees, or an employee organization that demonstrates that 35 percent of the employees certify that the designated exclusive representative is no longer the representative of the majority of the employees; or
(iii) The MNCPPC demonstrating that 1 or more employee organizations has presented to it a claim, supported by substantial proof, to be certified as the exclusive representative, and the Commissioner finds, on investigation of the petition, that a valid question of representation exists.
(3) There shall be on the ballot:
(i) The name or names of the employee organization submitting the valid petition;
(ii) The name of any other employee organization or organizations designated on a valid petition signed by more than 10 percent of the bargaining unit; and
(iii) A provision for "no representation".
(4) In an election where none of the choices on the ballot receives a majority of the votes cast, a runoff election shall be conducted, with the ballot providing for a selection between the 2 choices receiving the highest number of ballots cast in the election. An employee organization that receives a majority of votes cast in an election shall be certified by the Commissioner as the exclusive representative for collective bargaining purposes. An employee organization may not be certified as an exclusive representative, except pursuant to the provisions of this section.
(5) All elections shall be conducted:
(i) By secret ballot; and
(ii) By the Commissioner.
(6) Elections may not be conducted if a valid election has been held within the preceding 2 years.
(d) (1) The MNCPPC shall extend to an employee organization certified as the exclusive representative the right to represent the employees in collective bargaining and in the settlement of grievances.
(2) An employee organization certified as the exclusive representative shall serve as the bargaining agent for the bargaining unit. The organization shall represent fairly and without discrimination all public employees without regard to whether the employees are members of the employee organization.
(3) Every employee organization which has or seeks certification as an exclusive representative shall file with the MNCPPC and the Commissioner, a copy of the employee organization's constitution and bylaws. All changes and amendments to the constitution and bylaws shall be promptly reported.
(4) Every employee organization shall file an annual report with the MNCPPC and the Commissioner. The annual report shall include a financial report:
(i) Signed by its president and treasurer or corresponding principal officers; and
(ii) Contain information in such detail as necessary to accurately disclose its financial condition and operations.
(5) The constitution or bylaws of every employee organization shall provide:
(i) A pledge that the organization will accept members without regard to age, race, sex, religion, marital status, or national origin;
(ii) Accurate accounts of all income and expenses and an annual financial report. The accounts shall be open for inspection by any member of the organization;
(iii) Periodic elections by secret ballot subject to recognized safeguards;
(iv) That individual members have the right to participate in the affairs of the organization; and
(v) Fair and equitable procedures in disciplinary actions.
(6) An employee organization that has not filed an annual report or whose constitution and bylaws do not conform to the requirements of subsection (d)(5) of this section may not be or remain certified for the purpose of negotiating with the MNCPPC.
(e) (1) The certified employee organization and the MNCPPC have the obligation to engage in collective bargaining. This obligation does not compel either party to agree to a proposal or to make a concession to the other.
(2) (i) 1. Collective bargaining shall begin not later than September 1 before the beginning of an entire fiscal year for which an agreement has not been reached between the MNCPPC and the certified employee organization.
2. Collective bargaining shall conclude on or before the following February 4, or any later date determined by mutual agreement of the parties.
(ii) During the period set in subparagraph (i)1 of this paragraph, the parties shall negotiate in good faith.
(3) (i) If a party considers a bargaining proposal to contravene the responsibilities of the MNCPPC under subsection (g) of this section, or the rights of employees of the MNCPPC under subsection (h) of this section, or otherwise to violate this section, the party shall petition the labor relations administrator to determine whether the bargaining proposal constitutes a negotiability dispute that contravenes this section.
(ii) The procedure for resolving a negotiability dispute shall follow the process for reviewing unfair labor practice charges, except that the labor relations administrator may shorten the time periods or order any expedited procedure appropriate under the circumstances.
(iii) The labor relations administrator may order a party to withdraw all or part of a bargaining proposal that contravenes this section.
(iv) Unless appealed on the basis of being arbitrary, capricious, or exceeding the authority of a party, any decision and order reached under this subsection is final.
(4) (i) A mediator may be utilized by the parties in collective bargaining whenever the parties mutually agree or if an impasse exists whenever one party requests mediation.
(ii) The mediator shall be selected by the parties from a list supplied by either the American Arbitration Association or the Federal Mediation and Conciliation Service.
(5) (i) If the parties have not reached an agreement on or before December 1, or any later date determined by mutual agreement of the parties on a collective bargaining agreement that would succeed the existing agreement, either party may declare a bargaining impasse and the parties jointly shall appoint an arbitrator.
(ii) If the parties are unable to agree on an arbitrator, the labor relations administrator shall name the arbitrator on or before December 7, or any later date determined by mutual agreement of the parties.
(iii) Notwithstanding appointment of the arbitrator, nothing in this section shall require commencement of arbitration prior to February 1, or any later date determined by mutual agreement of the parties.
(iv) On or before February 1, or any later date determined by mutual agreement of the parties, the arbitrator shall direct the parties to submit:
1. A joint memorandum listing all items to which the parties previously agreed; and
2. A separate memorandum of the party's last final offer presented in negotiations on all items to which the parties did not previously agree.
(v) 1. On or before February 10, or any later date determined by mutual agreement of the parties, the arbitrator shall hold a nonpublic hearing on the parties' proposals at a time, date, and place selected by the arbitrator.
2. Each party shall submit evidence or make oral and written arguments in support of the party's last final offer.
3. The arbitrator may not open the hearing to a person who is not a party to the arbitration.
(vi) 1. On or before February 15, or any later date determined by mutual agreement of the parties, the arbitrator shall issue a report selecting between the final offers submitted by the parties that the arbitrator determines to be more reasonable, viewed as a whole.
2. In determining the more reasonable offer, the arbitrator may consider only the following factors:
A. Past collective bargaining contracts between the parties, including the past bargaining history that led to the agreement or the precollective bargaining history of employee wages, hours, benefits, and other working conditions;
B. A comparison of wages, hours, benefits, and other conditions of employment of police officers in Montgomery County and Prince George's County;
C. The public interest and welfare;
D. The ability of the employer to finance any economic adjustments required under the proposed agreement; and
E. The effects of any economic adjustments on the standard of public services normally provided by the employer.
3. In determining the most reasonable offer, the arbitrator shall consider to be integrated with each offer all items on which the parties agreed prior to the arbitration.
4. The arbitrator may not receive or consider the history of collective bargaining relating to the immediate dispute, including any offers of settlement not contained in the offer submitted to the arbitrator.
(vii) The arbitrator may not compromise or alter the final offer that the arbitrator selects.
(viii) Subject to subsection (f)(5) of this section, without ratification by the parties, the offer selected by the arbitrator, integrated with the items to which the parties previously agreed, shall be the final agreement between the MNCPPC and the exclusive representative.
(ix) The parties shall execute an agreement incorporating the final agreement, including arbitration awards and all issues agreed to under this paragraph.
(x) The MNCPPC and the employee organization shall share equally in paying the costs of the arbitrator's services.
(6) Employees may not engage in a strike.
(7) If a strike of employees occurs, a court of competent jurisdiction may, upon request of the MNCPPC, enjoin the strike.
(8) An employee may not receive pay or compensation from the MNCPPC for any period during which the employee is engaged in a strike.
(9) If an employee organization certified as an exclusive representative engages in a strike, its certification as exclusive representative shall be revoked by the Commissioner, and that employee organization or any other employee organization which engages in a strike shall be ineligible to be certified as an exclusive representative for a period of 1 year following the end of the strike.
(f) (1) A collective bargaining agreement shall be executed by the MNCPPC and the exclusive representative incorporating any matters of agreement reached on wages, hours, and other terms and conditions of employment, and may include dues and maintenance or service fees taken from payroll deduction.
(2) A collective bargaining agreement may include a provision for the arbitration of grievances arising under an agreement.
(3) A discussion of the terms of employee retirement systems is permitted in the course of collective bargaining, but the discussion of the hiring practices of MNCPPC is prohibited.
(4) The terms of the agreement shall supersede any conflicting rules, regulations, and administrative policies of the MNCPPC.
(5) (i) The economic provisions of a final agreement are subject to funding by the Montgomery and Prince George's County Councils.
(ii) The MNCPPC shall request funds in the MNCPPC's final budget from the county councils for all economic provisions of a final agreement.
(6) If the request for funds necessary to implement the agreement is reduced, modified, or rejected by the governing bodies of Prince George's County and Montgomery County, either party to the agreement, no later than 5 days after final budget action by the governing bodies, shall reopen the negotiated agreement and bargain with respect to the provisions of the agreement not approved by the county councils.
(7) If a provision in a collective bargaining agreement is ruled invalid or is not funded by Montgomery County and Prince George's County, the remainder of the agreement remains in effect unless reopened under paragraph (6) of this subsection.
(g) (1) Subject to the applicable laws and regulations, this section and any agreement made under it may not impair the rights and responsibilities of the MNCPPC to:
(i) Determine the overall budget and mission of the MNCPPC;
(ii) Maintain and improve the efficiency and effectiveness of operations;
(iii) Determine the services to be rendered and the operations to be performed;
(iv) Determine the location of the facilities and overall organizational structure, methods, processes, means, job classifications, and personnel by which operations are to be conducted;
(v) Direct and supervise employees;
(vi) Hire, select, and establish the standards governing promotion of employees and classifying positions;
(vii) Relieve employees from duties because of lack of work or funds or when the MNCPPC determines continued work would be inefficient or nonproductive;
(viii) Transfer and schedule employees;
(ix) Determine the sizes, grades, and composition of the workforce;
(x) Set the standards of productivity and technology;
(xi) Establish employee performance standards and evaluate and assign except that evaluation and assignment procedures are subjects for bargaining;
(xii) Make and implement systems for awarding outstanding service increments, extraordinary performance awards, and other merit awards;
(xiii) Introduce new or improved technology, research development, and services;
(xiv) Control and regulate the use of machinery, equipment, and other property and facilities of the MNCPPC subject to negotiation related to matters affecting the health and safety of employees;
(xv) Maintain internal security standards;
(xvi) Create, alter, combine, contract out, or abolish any job classification, department, operation, unit, or other division or service, provided that no contracting of work that will displace employees may be undertaken by the MNCPPC unless the MNCPPC gives written notice to the certified representative at least 90 days before signing the contract or within a different period of time as agreed by the parties;
(xvii) Suspend, discharge, or otherwise discipline employees for cause, subject to the grievance procedure set forth in the collective bargaining agreement;
(xviii) Issue and enforce rules, policies, and regulations necessary to carry out the provisions of this subsection and all other managerial functions that are consistent with this article, federal or State law, or the terms of the collective bargaining agreement.
(2) This subsection may not preclude or impair collective bargaining or negotiability as to any subject matter included within any written agreement made between MNCPPC and the exclusive representative on or before December 31, 2001.
(h) (1) Employees have the right to form, join, or assist any employee organization, to bargain collectively through representatives they have chosen, and to engage in other lawful concerted activities for the purpose of collective bargaining and also shall have the right to refrain from any or all of these activities.
(2) Any employee or group of employees has the right at any time to present grievances arising under the terms of the agreement to the MNCPPC and to have the grievances adjusted without the intervention of the exclusive representative. The MNCPPC has the duty to hear those grievances and participate in their adjustment. However, the adjustment may not be inconsistent with the terms of a collective bargaining agreement then in effect. The MNCPPC shall give prompt notice of all adjustments to the exclusive representative.
(3) The MNCPPC and a public employee organization shall not interfere with, intimidate, restrain, coerce, or discriminate against public employees because of the exercise of their rights under paragraphs (1) and (2) of this subsection.
(i) (1) The MNCPPC, its agents, or its representatives may not:
(i) Interfere with, intimidate, restrain, coerce, or discriminate against public employees because of the exercise of their rights under the provisions of this section;
(ii) Dominate, interfere with, or assist in the formation, existence, or administration of a labor organization, or contribute financial or any other support to a labor organization;
(iii) Be prohibited from permitting employees to negotiate or confer with a labor organization during work hours without loss of time or pay;
(iv) Discriminate against public employees with regard to hiring or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization;
(v) Discharge or otherwise discriminate against an employee because the employee has signed or filed an affidavit, petition, or complaint or given any information or testimony under the provisions of this section;
(vi) Refuse to collectively bargain in good faith with a certified employee organization as provided in subsection (e)(1) of this section; or
(vii) Refuse or fail to comply with any provision of this section.
(2) Employees of the MNCPPC, a labor organization, its agents, or its representatives may not:
(i) Interfere with, intimidate, restrain, coerce, or discriminate against an employee in the exercise of the employee's rights provided under this section;
(ii) Cause or attempt to cause the MNCPPC to discriminate against a public employee in violation of paragraph (1)(iv) of this subsection;
(iii) Refuse to collectively bargain in good faith with the MNCPPC as provided in subsection (e)(1) of this section, if a labor organization has been designated as the exclusive representative of employees in a unit in accordance with the provisions of subsection (c) of this section;
(iv) Engage in a strike in violation of subsection (e)(6) of this section; or
(v) Refuse or fail to comply with any provision of this section.
(3) An expression of any views, arguments, or opinions, whether oral or written, printed, graphic, or visual form, may not constitute or be evidence of an unfair labor practice under any of the provisions of this section, if the expression does not contain a threat of reprisal or force, a promise of benefit, or a misrepresentation of fact.
(j) (1) Nothing in this section or in any other federal or State law may preclude the MNCPPC from making a collective bargaining agreement with an exclusive representative that requires an employee, as a condition of employment, to pay a maintenance or service fee as a contribution towards the cost of the negotiation and administration of the agreement, in an amount not greater than the regular annual dues paid to the exclusive representative.
(2) Before the MNCPPC discharges an employee who fails to pay a maintenance or service fee, it shall give the employee:
(i) Written notice of the delinquent payment; and
(ii) Adequate time to correct the delinquency.
(3) If the MNCPPC and the employee are unable to resolve the fee issue, the issue shall be submitted to an umpire in accordance with the provisions of subsection (k) of this section.
(k) (1) Any charge that the MNCPPC, a public employee, or a labor organization has engaged in an unfair labor practice shall:
(i) Be in writing;
(ii) State concisely and simply the facts that are asserted or if the facts cannot be stated in detail, the issues that are involved; and
(iii) Be served personally on the party alleged to have engaged in the violation within 180 days of the alleged violation.
(2) If the charging party and the charged party are unable to resolve the matter, the charge shall be submitted to an umpire selected according to the following rules:
(i) The MNCPPC shall appoint the umpire from a list of 5 nominees agreed upon by the exclusive representative and the Executive Director of the MNCPPC.
(ii) The umpire shall serve for 2 years and be eligible for reappointment.
(iii) 1. The fees and expenses of the umpire shall be paid as set forth by agreement of the parties.
2. Unless otherwise provided by agreement, the parties shall share equally the umpire's costs.
(iv) The umpire may not be otherwise employed by either the MNCPPC or the exclusive representative.
(3) The power of the umpire is exclusive.
(4) The umpire may not require compliance with the technical rules of evidence.
(5) The umpire:
(i) Shall investigate and attempt to resolve or settle, as provided in this section, charges of engaging in prohibited practices;
(ii) Shall defer to any valid grievance procedure adopted by the MNCPPC and the exclusive representative for the resolution of disputes subject to the grievance procedure, unless the deferral would result in a violation of the purposes of this section;
(iii) Shall defer to the Maryland Law Enforcement Officers' Bill of Rights for the resolution of disputes subject to that subtitle;
(iv) Shall recognize fundamental distinctions between private and public employment; and
(v) May not regard federal and State law that is applicable wholly or in part to private employment as controlling precedent.
(6) Based on the preponderance of the evidence, the umpire shall submit written findings of fact and conclusions of law to the parties no later than 40 days from the date of appointment.
(7) If the umpire determines that a party named in the complaint has engaged or is engaging in an unfair labor practice, the umpire shall issue an order requiring the party to cease the practice.
(8) An order may:
(i) Include any remedies, including reinstatement of a public employee with or without back pay;
(ii) Require periodic reports on the extent to which the party has complied with an order; and
(iii) Be designed to prevent future unfair labor practices.
(9) A party who is aggrieved by a final decision of an umpire is entitled to judicial review of the decision as provided in paragraph (10) of this subsection.
(10) (i) Within 30 days after the issuance of a final order, a petition for judicial review shall be filed with the Circuit Court for Prince George's County or the Circuit Court for Montgomery County.
(ii) The circuit court may not consider evidence that was not offered in the proceeding before the umpire unless the court determines that the failure to offer the evidence shall be excused because of extraordinary circumstances.
(iii) The circuit court may not overturn the umpire's decision unless the court finds that the umpire's decision is not supported by substantial evidence.
(11) (i) A charging party may petition the Circuit Court for Prince George's County or the Circuit Court for Montgomery County for enforcement of an order of an umpire.
(ii) Unless a petition for judicial review has been filed in accordance with paragraph (10) of this subsection, a petition for enforcement of an order of an umpire may not be used to appeal the final decision of the umpire.
