Chapter 4.08
COLLECTIVE BARGAINING
Sections:
4.08.010 Legislative findings and purpose.
4.08.030 Management and supervisory personnel.
4.08.040 Internal employee organization democracy—Members’ bill of rights.
4.08.050 Recognition of employee organization.
4.08.060 Collective bargaining negotiations.
4.08.070 Collective bargaining impasse.
4.08.090 Unfair labor practices.
4.08.010 Legislative findings and purpose.
A. Legislative Findings. In enacting this chapter, the Mayor and Council recognize that joint decisionmaking by government and public employees in matters affecting wages and working conditions increases responsiveness, communication and efficiency. The City recognizes its responsibility to provide orderly procedures for the participation by its employees and their representatives in the formulation of personnel policies, the fair and considerate treatment of employees and the resolution of questions and controversies with respect to the terms and conditions of employment, while simultaneously ensuring that the public, welfare, health and safety are maintained.
B. Purpose. The Mayor and Council enact this chapter for the following purposes:
1. To provide procedures for City employees to participate in the formulation and implementation of policies establishing or affecting their conditions of employment;
2. To recognize the right of City employees to organize for the purpose of collective bargaining;
3. To provide a means by which employees may select units appropriate for effective dealings between their representatives and the City;
4. To ensure that such units operate democratically and without discrimination;
5. To require the City to meet and confer with certain employees and to negotiate and enter into written agreements with exclusive representatives of certain other employees on matters of wages, hours and other terms and conditions of employment;
6. To recognize merit principles and protections in employment;
7. To establish a rational method of dispute resolution. (Prior code § 8B-201)
4.08.020 Definitions.
In this chapter, the following terms have the meanings indicated:
Bargaining Units. There are two “bargaining units” among the employees of the City of Takoma Park, as follows:
1. All sworn police officers except for Police Department management and supervisory personnel and confidential employees;
2. All other employees, including other employees in the Police Department, except for management and supervisory personnel and confidential employees.
“Confidential employee” means an employee who has regular access to privileged information regarding personnel management or labor policies through the employee’s duty to assist:
1. The Mayor or a Councilmember;
2. The City Manager or Deputy City Manager; or
3. A department head or assistant department head.
“Employee” means any person who legally occupies a position in the City’s classified service that:
1. Requires work on a continuous basis for a minimum of 20 hours per week; or
2. Is allocated to the class of crossing guard.
“Employee organization” means any lawful organization that admits municipal employees to membership, the primary purpose of which is to represent employees concerning terms and conditions of employment. An organization that practices a policy of illegal discrimination or that fails to accord its members the basic principles and procedures of internal democracy under Section 4.08.040 is not an “employee organization.”
Employee Rights. Employees who are within the appropriate unit shall have and shall be protected in the exercise of the right of self-organization to form, join or participate in any employee organization or to refrain from forming, joining, assisting or participating in any employee organization, freely and without fear of penalty or reprisal, to negotiate through representatives of their own choosing on terms and conditions of employment as herein defined, and the processing and arbitration of grievances.
“Employer” means the City of Takoma Park.
Employer Rights. Subject to the provisions of this chapter, it is the exclusive right of the employer to establish or determine the mission of the departments of City government, set standards of service to be offered to the public, classify jobs under Chapter 4.04 of this title, exercise control and direction over its organization, operations and budget and establish merit system principles that will guide its personnel actions.
“Grievance” means a dispute that:
1. Concerns the application or interpretation of the terms of a collective bargaining agreement, the City Code or the rules or regulations of the employer or any of its departments; and
2. Affects the terms and conditions of employment.
“Management and supervisory personnel” means any employee who:
1. Serves at the pleasure of the Mayor and Council;
2. Acts as a representative of the City in collective bargaining;
3. Is the personnel officer for the City;
4. Is the director or assistant director of a department;
5. Is a sanitation, shop or street supervisor in the Department of Public Works;
6. Is a uniformed police officer at the rank of sergeant or above; or
7. Is the City Manager, Deputy City Manager, City Clerk, Assistant City Clerk, or Senior Account Clerk.
“Strike” means, by concerted action, the failure to report for duty, the willful absence from positions, the stoppage or slowdown of work or the abstinence in whole or in part from the full, faithful and proper performance of the duties of employment for the purpose of inducing, influencing, coercing or preventing a change in compensation or rights, privileges, obligations or other terms and conditions of employment.
“Terms and conditions of employment” means all terms and conditions that establish, affect or control pay, fringe benefits, retirement and pension benefits, attendance and leave, promotions, transfers, layoffs, demotions, termination, discipline, evaluation, professional development, workload, work schedule or health and safety, and those items that both parties agree to negotiate. Terms and conditions must be consistent with Federal, State and local law, and must not be excluded under the prerogative of “employer rights,” under this section. (Ord. 2010-51 § 3, 2010/prior code § 8B-202)
4.08.030 Management and supervisory personnel.
Management and supervisory personnel and confidential employees have the right to form an employee organization that represents their interests and is recognized as their exclusive representative. The employer shall provide such organization an opportunity to participate in the formulation and implementation of policies and practices affecting the conditions of the employment of these employees. None of the other provisions of this chapter apply to these employees or an employee organization established under this section. (Ord. 2010-51 § 3, 2010/prior code § 8B-203)
4.08.040 Internal employee organization democracy—Members’ bill of rights.
A. Equal Rights. Every member of an employee organization shall have equal rights and privileges within the organization to nominate candidates; to vote in elections or referendums; to attend membership meetings; and to vote and participate in the deliberations upon the business of the organization at meetings, subject to reasonable rules and regulations in the organization’s constitution or bylaws.
B. Freedom of Speech and Assembly. Every member of any employee organization shall have the right to:
1. Meet and assemble freely with other members;
2. Express any views, arguments or opinions; and
3. Express at meetings of the employee organization the employee’s views upon candidates in an election of the employee organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings.
C. Responsibilities of Members. Nothing in this section shall be construed to impair the right of an employee organization to adopt and enforce reasonable rules concerning the responsibility of every member toward the organization as an institution and the responsibility of every member to refrain from conduct that would interfere with the organization’s performance of its legal or contractual obligations.
D. Dues, Initiation Fees and Assessments Payable to the Local Chapter of Employee Organization. For purposes of this subsection, the term “local employee organization” means an employee organization which represents only public employees of the City of Takoma Park, Maryland. The rates of dues and initiation fees payable by members of any local employee organization directly to such local employee organization shall not be increased, and no general or special assessment shall be levied upon such members by said local employee organization, except:
1. By majority vote by secret ballot of the members in good standing voting at a general or special membership meeting of the local organization, after reasonable notice of the intention to vote upon such question; or
2. By majority vote of the members in good standing of the local organization voting in a membership referendum conducted by secret ballot.
E. Protection of the Right to Sue.
1. No employee organization shall limit the right of any member thereof to:
a. Institute an action in any court, or a proceeding before any administrative agency;
b. Appear as a witness in any judicial. administrative or legislative proceeding; or
c. Petition or communicate with any elected official.
2. An employee organization may require a member to exhaust reasonable hearing procedures (but not to exceed a six-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organization to any of its officers.
3. The employer shall not directly or indirectly finance, encourage or participate in, except as a party, any such action, proceeding, appearance or petition.
F. Safeguards Against Improper Disciplinary Action. An employee organization may not fine, suspend, expel or otherwise discipline any member, except for nonpayment of dues unless the member has been:
1. Served with specific written charges;
2. Given a reasonable time to prepare a defense;
3. Afforded a full and fair hearing.
G. Invalidity of Constitution and Bylaws. Any provision of the constitution and bylaws of any employee organization which is inconsistent with the provisions of this section shall be of no force or effect.
H. Right to Copies of Collective Bargaining Agreements. It shall be the duty of the secretary or corresponding principal officer of each employee organization to forward a copy of each collective bargaining agreement to any employee who requests a copy if the employee’s rights are directly affected by such agreement. The officer shall maintain at the principal office of the employee organization of which he or she is an officer copies of any such agreement made or received by such employee organization. The copies shall be available for inspection by any member or by any employee whose rights are affected by such agreement. (Prior code § 8B-204)
4.08.050 Recognition of employee organization.
A. Selection of Exclusive Representatives. If an employee organization files a petition with the City and the petition is supported by evidence that at least 30% of the employees in an appropriate unit wish to be represented by that employee organization for purposes of collective bargaining, then the City shall cause a secret ballot election to be held under the supervision of the Maryland State Department of Labor and Industry or its successor agency within 30 days after receipt of the petition. The City must notify all employees immediately after receiving a petition under this section. Any other employee organization may intervene in the election if the organization files a petition supported by evidence of at least 10% representation in the unit. Any petition to intervene must be filed at least 10 days prior to the date of the scheduled election.
B. Elections.
1. Representation elections shall be conducted by the Department of Labor and Industry, a successor agency or any other impartial agency selected by the mutual agreement of the parties. The entity conducting the election shall be subject to the provisions of this chapter and the terms and conditions of such election agreement as may be reached by the parties. Except as otherwise provided, such entity shall resolve all legal issues or controversies relating to the conduct of the election.
2. Representation elections conducted pursuant to this section shall be by secret ballot and shall be subject to the following rules:
a. All interested persons shall be given not less than 15 days’ notice of the time and place of the election.
b. The ballots in all representation elections shall include a choice of no-employee organization.
c. In an election where none of the choices on the ballot receive a majority, a runoff election shall be conducted in which the ballot shall provide for a selection between the 2 choices or parties receiving the highest and second highest number of ballots cast in the election.
3. The Department of Labor and Industry (or other impartial agency) shall certify the results of the election within three working days after the final tally of votes. If an employee organization has received more than 50% of the votes cast, it shall be certified as the exclusive bargaining representative for the unit.
C. Authorization Check. When evidence is presented to the City that more than 50% of the employees within the appropriate unit have signed authorizations for a particular employee organization to represent them, the City may, in lieu of a secret ballot election, request the Department of Labor and Industry or its successor agency to conduct a validation of the authorizations. Should the Department of Labor and Industry determine that more than 50% of the employees in the appropriate unit have so authorized a particular employee organization, the City shall request the Department to certify that organization as the exclusive collective bargaining representative for the unit.
D. Dues and Agency Fees. Where an employee organization has been certified as the exclusive representative of the employee in a unit, it shall be the only employee organization eligible to obtain an agreement from the employer to deduct from the pay of those employees in the unit, who provide written authorization, any dues or fees designated or certified by the appropriate officer of the employee organization and to remit such fees to the employee organization. If an employee’s religious practices do not permit the employee to pay dues or service fees to an employee organization, the employee may donate a sum equivalent to dues or fees to a charitable organization.
E. Decertification.
1. No incumbent certified employee organization shall be decertified unless evidence is presented to the City that more than 50% of the employees in the appropriate unit have signed authorizations for another employee organization, or more than 50% of the employees have signed statements requesting that no employee organization represent them. If such evidence shall be presented, the City shall request the Department of Labor and Industry or its successor agency to conduct a secret ballot election, which shall include the incumbent employee organization as a ballot choice. If the nonincumbent employee organization gets more than 50% of the votes cast, then the nonincumbent organization shall be certified as exclusive representative for the appropriate unit. If more than 50% of the votes were cast for no employee organization, then there will be no exclusive representative. Otherwise, the incumbent employee organization shall remain certified.
2. Contract Bar. A showing of authorization for a decertification election shall not be entertained unless submitted during the period between 90 and 120 days before the end of the term of a collective bargaining agreement. (Prior code § 8B-205)
4.08.060 Collective bargaining negotiations.
A. Duty to Bargain in Good Faith. If an employee organization is certified as the exclusive representative of the employees in an appropriate unit, the employer and the employee organization shall have the duty to negotiate collectively and in good faith with respect to the terms and conditions of employment of employees in the unit. The organization must negotiate through its officials or representatives. “To negotiate with each other in good faith” means that each party shall have a continuing obligation to keep the other informed on all matters within the scope of the representation and give reasonable written notice of any action proposed to be taken that would amend any ordinance governing terms and conditions of employment, or generally applicable personnel policies.
B. Negotiations During Working Hours. Negotiations with an employee organization that has been accorded exclusive recognition may be conducted during the duty hours of the employee organization representatives involved in such negotiations, if they are employees within the appropriate unit; provided, that their attendance does not seriously interfere with the normal operations of the City and upon advance notice to their supervisor.
C. City’s Representative. A duly appointed designee shall act as the City’s primary representative for the purpose of conducting any negotiations or other relationships between any recognized employee organization and the City government.
D. Schedule for Negotiations. Because effective and orderly operations of government are essential to the public, it is declared to be in the public interest that in the course of collective bargaining the employer and the exclusive representative shall make every reasonable effort to conclude negotiations no later than February 1st of each year and shall include provisions for an effective date, a reopening date and an expiration date. With respect to matters requiring the appropriation of funds, the effective date of an agreement shall coincide with the employer’s fiscal year.
E. Grievance Procedure in Agreement. An agreement may contain a grievance procedure culminating in final and binding arbitration of grievances and disputed interpretations of such agreement. The grievance procedure shall set forth requirements for an election of remedies where other avenues of appeal may be equally available.
F. Agreements in Writing. Any agreement reached by the negotiators shall be reduced to writing and shall be executed by both parties. Such agreement shall be valid and enforced under its terms when entered into, in accordance with the provisions of this chapter and the City Charter.
G. Submission of Agreement to Council. A request for funds necessary to implement such written agreement and for approval of any provision of the agreement that differs from any City law, ordinance, rule or regulation shall be submitted to the City Council by the employer within the time schedule provided in the agreement. The City Council may approve or reject such request as a whole. If the submission is rejected, the entire agreement shall be returned to the parties for further bargaining, and either party may reopen all or part of the agreement. If the Council rejects a request, it must give the parties a detailed statement of the reasons for rejecting the request, so that the parties may be properly guided when they resume bargaining. Such request shall be considered accepted if the Council fails within 30 days after submission to said body to take final action thereon. Failure by the employer or his or her representative to submit such request within the designated time period shall be considered an unfair labor practice committed by the employer.
H. Conflicts Between Agreement and Rules or Regulations. If, upon approval of the City Council, pursuant to subsection (G) of this section, there is a conflict between the collective bargaining agreement and any rule or regulation adopted by the employer, including a merit system or other personnel regulations, the terms of such agreement shall prevail, except where specifically precluded by the Charter or State law. The City Council, upon approval of such agreement, should enact such legislation and appropriate whatever funds are required to comply with the collective bargaining agreement. Any agreement is dependent upon the City’s receipt of the revenues projected by the City as necessary for implementation of the agreement. If projected revenues fall below the level needed to fund any agreement, the City will provide notice of any revenue shortfall, and the City Manager, after conferring with the City Council, may request renegotiation of the fiscal terms of the agreement. Failure to enact the legislation and appropriate necessary funds is an unfair labor practice under Section 4.08.090(A).
I. Ratification of the Agreement by Employees. If the provisions of the constitution or bylaws of the exclusive representative require ratification of a collective bargaining agreement by its membership, only those members who belong to the bargaining unit involved shall be entitled to vote on such ratification, notwithstanding such provisions. (Ord. 2010-51 § 3, 2010/prior code § 8B-206)
4.08.070 Collective bargaining impasse.
A. Mediation. Should the City and the certified employee organization be unable to reach agreement after a reasonable period of negotiations, then either party may declare an impasse and request that a mediator agreed upon between the parties be appointed or that the Department of Labor and Industry or its successor agency shall provide a qualified mediator to attempt to facilitate the parties’ bargaining process.
B. Arbitration. Should mediation prove unsuccessful after 30 days have passed since the appointment of the mediator, the parties by agreement may require that a qualified arbitrator be obtained by agreement of the parties, or through application of the Voluntary Arbitration Rules of the American Arbitration Association, or under the auspices of another organization agreed upon by the parties in writing. If the parties agree, the mediator may serve as the arbitrator. The arbitrator shall have the power to set hearings, take testimony under oath and reach determinations as to all terms and conditions of employment in controversy between the parties. The determinations of the arbitrator shall be submitted to the Council for approval in the same manner as any agreement reached by the negotiators, as provided in Section 4.08.060(F), (G) and (H). If approved by the Council, the arbitrator’s determinations shall be incorporated by the parties into a collective bargaining agreement.
C. Invoking Authority of the Arbitrator. The authority of the arbitrator under subsection (B) of this section may be invoked by the employee organization, without the agreement of the employer, where the employee organization representing the unit in question has been denied the right to strike under Section 4.08.080(B). (Prior code § 8B-207)
4.08.080 Strikes.
A. Conditions to the Right to Strike. It is lawful for an employee who is in the appropriate bargaining unit involved in an impasse to strike if:
1. The employee is not included in an appropriate bargaining unit for which the process for a resolution of a dispute is by referral to arbitration;
2. The impasse mediator has certified that he or she is terminating the efforts to resolve the impasse and that all appropriate impasse procedures have been exhausted;
3. 30 days have elapsed since the City Council has tried to resolve the dispute and to reach an agreement, or if 60 days have elapsed since the mediator’s certification required in subsection (A)(2) of this section; and
4. The exclusive representative has given to the mediator and to the employer, after the time specified in subsection (A)(3) of this section, a 10-day notice of intent to strike, and the 10-day period has ended.
B. Alleged Threats to Public Safety. Where the strike threatened or when the strike occurring reaches the point where the public health or safety is alleged to be endangered, the employer may petition the mediator to make an investigation to verify the danger alleged. The mediator shall set requirements that must be complied with to avoid or remove any such imminent or present danger, or may require that all employees cease striking. In establishing such requirements, the mediator shall give strong weight to any agreement reached by the parties designating which employees shall be considered essential in the event of a strike.
C. Unlawful Strikes. No labor organization shall declare or authorize a strike of employees which is or would be in violation of this section. The employer may apply to the mediator for a declaration that the strike is or would be unlawful and the mediator, after affording the labor organization a reasonable opportunity to be heard on the applications, may make such a declaration.
D. Authority of Mediator in Impasse. The mediator may order the parties involved to engage in such impasse procedures as the mediator may deem appropriate during the course of a strike, regardless of the legality of the strike.
E. Authority of Department of Labor and Industry. If the Department of Labor and Industry finds that the organization has violated this section, it shall order an appropriate remedy. If the remedy includes the revocation of the organization’s recognition as exclusive representative, the employee organization shall be ineligible to participate in elections or be recognized as an exclusive representative for a period of time not to exceed one year thereafter. (Prior code § 8B-208)
4.08.090 Unfair labor practices.
A. Unfair Labor Practices. The following shall be deemed unfair labor practices which are prohibited:
1. The employer is prohibited from the following activities:
a. Interfering with, restraining or coercing employees in the exercise of their rights of self-organization or nonorganization;
b. Inducing any employee(s) or employee organization(s) to commit any unfair labor practice;
c. Discriminating in regard to hiring or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. Nothing in this chapter or in any other law of this City shall preclude the employer from making an agreement with an exclusive representative to require the payment of a monthly service charge as a condition of employment. However, the monthly service charge may not be greater than the regular monthly dues to the employee organization. The monthly service charge is a contribution toward the administration of the agreement. Under the agreement, the City may not discharge an employee who fails to comply with the contractual requirements unless:
i. The employee has been given proper notice of the delinquency and adequate time to correct the deficiency; and
ii. The employer has afforded the employee sufficient opportunity, protected by the requirements of due process and Section 4.08.030, to defend against the petition for discharge.
d. Controlling or dominating an employee organization or contributing financial or other support to it, except that the employer shall not be prohibited from permitting employees to negotiate or confer with it during working hours without loss of pay;
e. Refusing to negotiate in good faith with a recognized employee organization;
f. Violating Section 4.08.040, internal employee organization democracy—Members’ bill of rights, of this chapter. Nothing in this subsection shall be interpreted to give the employer the right to enforce these provisions.
2. Employee organizations are prohibited from the following activities:
a. Interfering with, restraining or coercing employees in the exercise of their rights of self-organization or nonorganization;
b. Inducing the employer or its representatives to commit any unfair labor practice;
c. Refusing to negotiate in good faith with the employer;
d. Refusing to represent all employees in its bargaining unit fairly, regardless of membership or non-membership in the union, and regardless of race, color, sex, national origin, religious creed, ancestry, age, marital status, handicap or sexual orientation; provided, however, that nothing in this subsection shall be interpreted as conferring a right of enforcement of these provisions on the employer;
e. Violating Section 4.08.040, internal employee organization democracy—Members’ bill of rights, of this chapter; provided, however, that nothing in this subsection shall be interpreted as conferring a right of enforcement of these provisions on the employer.
B. Procedure:
1. In the event that a claim is made that an unfair labor practice has been committed by either the employer or employee organization, the complaining party shall file with the mediation service of the Department of Labor and Industry a verified complaint, setting forth a detailed statement of the alleged unfair labor practice. The party complained of shall have the right to file an answer to the complainant within 5 days after service thereof. After investigation, such agency may issue an order dismissing the complaint or may order a further investigation or a hearing thereon at a designated time and place. Any such hearing shall be conducted without regard for the strict rules of evidence, and a transcript of testimony shall be taken.
2. If, upon all the testimony, the agency determines that an unfair labor practice has been committed, it shall state its findings of fact and shall issue and cause to be served upon the party committing the unfair labor practice a binding order requiring the party to cease and desist from such practice within a specified period and shall take such further affirmative action as it deems necessary to remedy the unfair labor practice. If, upon all the testimony, the agency determines that a prohibited practice has not been or is not being committed, it shall state its findings of fact and shall issue an order dismissing the complaint.
C. Choice of Remedies. Issues which may involve an unfair labor practice, as well as a grievance under the negotiated agreement, may, at the discretion of the aggrieved party, be filed as an unfair labor practice or a grievance, but not both. (Prior code § 8B-209)