(A) Impasse procedure.
(1) If the county and the exclusive representative are unable to reach a negotiated agreement by December 31, an impasse will be deemed to exist in the negotiations with the exclusive representative. At any time during the negotiations either party may declare an impasse.
(2) Within three business days after such impasse, the county and the exclusive representative involved shall apply to the American Arbitration Association for a list of nine neutral labor arbitrators who are members of the National Academy of Arbitrators, who are familiar with impasse disputes and interest arbitration, who maintain a residence within 150 miles of Frederick, Maryland;
(3) Pursuant to an application made under subsection (A)(2), instruct the American Arbitration Association to provide a list of neutral arbitrators within five business days, and ensure that all of the arbitrators on the list provided are available to conduct hearings and to issue a final written award by March 1;
(a) The parties shall alternately strike names and keep track of the order of the strikes until there is only one member remaining;
(b) The party striking first shall be agreed to or determined by a coin toss; and
(c) The last remaining arbitrator shall be deemed to be selected by the parties and shall arbitrate the dispute.
(4) The arbitrator shall be informed of his or her selection as soon as possible. If for any reason the selected arbitrator is unable or unwilling to serve or meet the deadlines contained in this section, the parties shall immediately notify the last previous strike from the arbitration panel of his or her selection. The process shall continue, if necessary, until a member of the arbitration panel available to serve and meet the deadlines is selected.
(5) Within five business days after selection of the arbitrator, the parties will provide a written memorandum that states all of the issues upon which they agree.
(6) Within five business days after receipt of the submissions provided for in subsection (A)(5) above, the parties will simultaneously exchange their respective "final offers" that contain all of the proposed issues for a memorandum of understanding between the county and the exclusive representative, including a proposed term of the memorandum of understanding of not less than one fiscal year and not more than three fiscal years.
(7) The arbitrator shall schedule a hearing in Frederick County to begin as soon as possible after the exchange of final offers, but in no event more than 30 calendar days after the exchange of final offers. The hearing shall not be open to the public and shall be conducted consistent with the procedural rules and regulations of the American Arbitration Association. Each party shall be responsible for the costs of their own attorney(s) and expert witness(es), if any.
(8) The arbitrator shall have full authority to hear and decide all issues in dispute regarding the parties' respective final offers, including matters of procedure and the scope of the arbitration.
(9) If the impasse is not resolved prior to the conclusion of the hearing the arbitrator shall prepare a written report, which shall include the arbitrator's separate decision as to each disputed subject area of bargaining as to whether he or she adopts the county or the exclusive representative's final offer as to each subject area of bargaining.
(10) In determining whether to include in the memorandum of understanding the final offer of the county or the exclusive representative, the arbitrator shall consider the factors described in subsection (B) below.
(B) Arbitrator - factors to consider.
(1) In determining which final offer is the more reasonable, the arbitrator must first evaluate and give the highest priority to the ability of the county to pay for additional short-term and long-term expenditures, including those which would result from adoption of each parties' respective final offer, by considering:
(a) The interest, needs, and welfare of county residents and taxpayers;
(b) The limits on the county's ability to raise taxes under state law and the county charter;
(c) The general fund revenue estimates for the ensuing fiscal year, exclusive of those revenues sufficient to fund the County Executive's proposed capital budget, transfers to other funds, legally mandated operating expenses, and debt service;
(d) The added burden on county taxpayers, if any, resulting from increases in revenues needed to fund a final offer;
(e) The county's ability to continue to provide the current standard of all public services, including state and county mandated expenditures;
(f) The potential impact of adoption of each parties' respective final offer on the county's credit rating; and
(g) The previously agreed-on issues as provided in subsection (A)(4).
(2) After evaluating the ability of the county to pay under subsection (B)(1), the arbitrator may only consider:
(a) Past collective bargaining agreements between the parties, including the past bargaining history that led to each agreement;
(b) Overall compensation presently received by the employees in the bargaining unit, inclusive of wages, vacations, holidays, excused leaves, insurance and pensions, medical and hospitalization benefits, and all other economic benefits received;
(c) Wages, hours, benefits and conditions of employment of similar employees of other public employers in comparable jurisdictions as defined in subsection (B)(3) below;
(d) Wages, hours, benefits, and conditions of employment of other county employees and the potential effect of the arbitrator's selection of each parties' respective final offer on other employees of the county;
(e) The special nature of the work performed by the employees in the bargaining unit, including hazards of employment, physical requirements, educational qualifications, job training and skills, shift assignments and the demands placed upon such employees as compared to other county employees;
(f) The continuity and stability of employment of the members of the bargaining unit, including application and vacancy statistics for positions in the bargaining unit; and
(g) Increases or decreases in the cost of living in Frederick County.
(3) In determining the comparability of other jurisdictions, the arbitrator shall compare the following characteristics of the proposed comparable jurisdiction with those same characteristics for Frederick County:
(a) Geographic size;
(b) Distance between the county and the proposed comparable jurisdiction;
(c) Population;
(d) Population density;
(e) Average household income of residents;
(f) Average property value;
(g) Gains and losses of assessed property values;
(h) Size and composition of fire department;
(i) Fire incident rate;
(j) General fund revenue and expenditures;
(k) Assessable tax base; and
(l) Cost of living data.
(4) The arbitrator must base the selection of the more reasonable respective final offer of the parties on the contents of the offer and the integration of any previously agreed-on items with the disputed items. In making a decision, the arbitrator must not consider or receive any evidence or argument concerning offers of settlement not contained in the final offers submitted to the arbitrator, or any other information concerning the collective bargaining leading to impasse. The arbitrator must neither compromise nor alter the final offer that he or she selects.
(5) The final offer selected by the arbitrator, integrated with any items previously agreed on, is the final agreement between the parties, need not be ratified by any party, and has the force and effect of an agreement voluntarily entered into and ratified under § 1-2-122(B)(2).
(C) Executive action.
(1) The arbitrator shall submit his or her decision to the county and the exclusive representative within 20 calendar days after the conclusion of the hearing or the date established for the submission of post-hearing briefs, whichever is later, but in no event later than March 1. The report and proposed memorandum of understanding shall be binding upon the County Executive and the exclusive representative, including the individual employees in the bargaining unit. The County Executive shall submit to the County Council in a timely manner all provisions of the new memorandum of understanding adopted by the arbitrator which require an appropriation of funds or enactment, repeal, or modification of county law, and shall make a good faith effort to have such provisions implemented by Council action as a part of the following year's budget process.
(2) The County Executive shall undertake all administrative and executive action necessary to submit a proposed budget to carry out the decision issued by the arbitrator.
(3) The submission of a proposed budget to the County Council fulfills the obligations of the County Executive under this article.
(4) This subsection may not be interpreted or construed to require the County Executive to be bound by, or to submit a budgetary request and legislation to implement any decision of an arbitrator that is contrary to:
(a) State law;
(b) Provisions of the county charter governing public employment and fiscal procedures; or
(c) Those rights that are exclusive to the county pursuant to § 1-2-124 of this article.
(D) Council action. The County Council is not bound by the arbitrator's decision made under this section and may act upon the submitted budget to implement the arbitrator's decision under this section in accordance with applicable law. The County Council retains the right to approve or disapprove, in whole or in part, any additional funding required as the result of the arbitrator's decision.
(E) Continuing negotiations.
(1) The parties are strongly encouraged to reach an agreement on all issues whenever possible.
(2) On or before March 10, the County Council may indicate its intention to appropriate funds for or otherwise implement the agreement of the parties or the arbitrator's decision, whichever is applicable, or its intention not to do so, and state its reasons for any intent to reject any part of the agreement or arbitrator's decision. If the Council indicates its intention to reject any part, it shall designate a representative to meet with the parties and present the Council's views in their further negotiations. The parties shall thereafter meet as promptly as possible and attempt to negotiate an agreement acceptable to the Council. The results of the negotiations shall be submitted to the Council on or before March 15.
(3) This section may not be construed to interfere with any efforts the parties may undertake to reach a negotiated agreement concerning any disputes at any time.
(F) Duration of agreement. An arbitrator's award may be for more than one fiscal year; however, the County Council shall only vote on proposed legislation to implement such award one year at a time.
(G) Construction of section. This section shall be the exclusive procedure for resolving disputes between the parties unless the parties mutually agree to use another or an additional dispute resolution procedure during any period of negotiations.
(H) Extension of memorandum of understanding.
(1) If the impasse resolution procedures provided for in this section have been invoked and the current memorandum of understanding expires without the implementation of a new memorandum of understanding, the county may not, without the written approval of the exclusive representative, make any changes in the wages or terms and conditions of employment between the expiration of the current memorandum of understanding and the effective date of the successor memorandum of understanding, except that the county may make changes to its health benefits. In addition, the county may implement changes to other benefits as required by applicable benefit plan documents; and
(2) The implementation of this subsection may not violate the provisions of the county charter and may be effective for no longer than one year.
(I) Costs. Fees, costs, and expenses of the arbitrator shall be shared equally by the county and the exclusive representative.
(J) Waiver of limitation periods. Subject to the requirements of the county charter, the parties may waive the time limits and dates established in this section by written mutual agreement.
(K) Modification. At any time, the parties may modify any provision of the memorandum of understanding by written mutual agreement.
(Bill No. 20-01, passed 2-18-2020)