[HISTORY: Adopted by the Mayor and Council of the City of
Hagerstown as indicated in article histories. Amendments noted where
applicable.]
[Adopted 7-25-2017 by Ord. No. O-17-10]
This article governs the procedure for resolving an impasse
between:
As used in this article, the following terms shall have the
meanings indicated:
A process for resolving labor disputes in which a neutral
third party (arbitrator), chosen according to the provisions of this
article, renders a binding decision after permitting both parties
the opportunity to be heard according to the provisions of this article.
A process for resolving labor disputes in which a neutral
third party, chosen according to the provisions of this article, renders
a nonbinding recommendation as to what terms and conditions should
be contained in a new collective bargaining agreement.
A point in labor negotiations at which both parties agree
in writing that no further progress can be made toward reaching an
agreement because neither party is willing to change its collective
bargaining position with respect to wages, fringe benefits, or other
terms and conditions of a proposed collective bargaining agreement
or labor dispute.
A conflict or controversy during labor negotiations regarding
wages and benefits between:
A process for resolving labor disputes in which a neutral
third party (mediator), chosen according to the provisions of this
article, assists the parties to reach an agreement. The mediator has
no power to impose a decision on the parties.
A full-time employee of:
Pursuant to § 802A of the Charter of the City of Hagerstown,
non-management employees of the Police Department and non-management
employees of the Fire Department shall be entitled to designate a
union to act as their exclusive representative and to engage in collective
bargaining with the City, to include the procedures set forth in this
section.
Should an impasse occur between either the City and the non-management employees of the Police Department or their exclusive representative; or the City and the non-management employees of the Fire Department or their exclusive representative, the parties who have declared the impasse shall submit the issues on which they have reached impasse to mediation as provided in § 37-5 and to fact finding as provided in § 37-7. Upon completion of mediation and fact finding without final agreement on a new collective bargaining agreement, the parties who have declared the impasse shall commence arbitration procedures in accordance with § 37-8. The existing or most recently terminated or most recently expired collective bargaining agreement between the parties who have declared the impasse shall remain in effect until a final disposition is rendered, including any motion to vacate the decision rendered by the arbitrator panel filed in accordance with § 37-17 and any appeal thereof.
Mediation shall be nonbinding, conducted by a neutral mediator
selected by the parties who have declared the impasse or, in the event
these parties are unable to agree upon a mediator, by a neutral mediator
selected from a list provided by the Federal Mediation and Conciliation
Service, and conducted in a manner agreed to by the parties at impasse.
No statement made or position taken during mediation under this
article may be used as evidence in any other proceeding.
If the parties who have declared the impasse do not reach voluntary
agreement in mediation, each party shall submit the issues on which
they have reached impasse and their positions on these issues to fact
finding, upon which a neutral fact finder selected by the parties
at impasse or, in the event the parties at impasse are unable to agree
upon a fact finder, selected from a list provided by the Federal Mediation
and Conciliation Service, will hear evidence presented by both parties
and will make a nonbinding recommendation on which terms and conditions
should be contained in the new collective bargaining agreement between
the parties. No statement made or position taken during fact finding
under this section may be used as evidence in any other proceeding.
Upon completion of mediation and fact finding without final
agreement on a new collective bargaining agreement, the parties who
have declared the impasse shall:
A.
Within 10 days of completion of the fact finding process, reduce
to writing a memorandum of agreed issues, which states all of the
wages, benefits, and terms and conditions of employment upon which
they agree;
B.
Within 10 days of completion of the fact finding process, apply to
the Federal Mediation and Conciliation Service for a list of no fewer
than five neutral labor arbitrators who are members of the National
Academy of Arbitrators, who are familiar with and have rendered decisions
in public employer impasse disputes and interest arbitration, and
are available to conduct a hearing and issue a final written award;
C.
Pursuant to an application made under § 37-8B, instruct the Federal Mediation and Conciliation Service to provide a list of neutral arbitrators who are familiar with and have rendered decisions in public employer impasse disputes and interest arbitration, and are available to conduct a hearing and issue a final written award; and
If the Federal Mediation and Conciliation Service is unable to satisfy the requirements of § 37-8, the parties who have declared the impasse shall:
A.
Agree to accept fewer than five arbitrators; or
B.
Request from the American Arbitration Association a supplementary
or alternative list of neutral labor arbitrators who are members of
the National Academy of Arbitrators, who are familiar with and have
rendered decisions in public employer impasse disputes and interest
arbitration, and are available to conduct a hearing and issue a final
written award.
The parties who have declared the impasse shall select the neutral
arbitrator in the manner as follows.
C.
The non-management employees or their exclusive representative and
the City shall continue to alternate strikes until a panel of three
neutral labor arbitrators remains.
D.
In the event that the list or lists provided contain more than five
neutral labor arbitrators or fewer than five neutral labor arbitrators,
the parties shall alternate strikes until a panel of three neutral
labor arbitrators remains, in such a manner that the City exercises
the final strike of the fourth remaining neutral labor arbitrator
and alternating backwards.
After conferring with the parties who have declared the impasse
as to their selection, the panel of neutral arbitrators selected under
this section shall:
A.
Require the parties to submit a final offer, which must consist of
either a complete draft of a proposed collective bargaining agreement
or a complete package proposal, as the panel directs;
B.
Require the parties to submit jointly to the arbitrator panel the memorandum of agreed issues prepared according to § 37-8A;
C.
Schedule and hold a prehearing conference in which procedural consideration
for both the hearing and the post-hearing submission of briefs will
be addressed and either agreed to by the parties or, to the extent
the parties cannot agree on procedures, determined by the panel of
arbitrators;
D.
Convene and adjourn a hearing, which may be closed in accordance with law, at which the parties who have declared impasse may present evidence in accordance with § 37-13;
E.
Administer oaths;
F.
Issue subpoenas duces tecum to compel the production of relevant
and nonprivileged documents and other tangible evidence to be produced
at a time prior to a hearing or at a hearing;
G.
Issue subpoenas to compel the attendance and testimony or witnesses,
except that no elected official of the City or of the state may be
compelled to appear and testify;
H.
Sequester witnesses, if requested; and
I.
Decide whether to hear evidence offered through a proffer.
The neutral arbitrator panel selected under this section shall:
A.
Have full authority to hear and decide all stipulated issues in dispute,
including the procedures of the arbitration hearing;
B.
Have no authority to consider or amend matters previously agreed
upon and submitted in the parties' memorandum of agreed-upon
issues;
C.
Have no authority to determine or dictate staffing levels, including
but not limited to determining the number of employees that the City
must hire as well as placing any limits on the City's ability
to furlough employees or reduce staffing through layoffs;
D.
Receive and enter into the record the final offers of the City and
the exclusive representative;
E.
Evaluate and give the highest priority to the ability of the City
to pay for additional short-term and long-term expenditures by considering
the following factors:
(1)
The limits on the City's ability to raise taxes or charge fees
under state law and the City Charter;
(2)
The added burden on City taxpayers, if any, resulting from increases
in revenues needed to fund the final offer and/or decreases/reductions
in services;
(3)
The City's ability to continue to provide the current standard
of all public services;
(4)
The number of bargaining unit employees per capita;
(5)
The current assessed valuation of real estate property in the City;
and
(6)
A comparison of the assessed valuation of real estate property and
tax rates of other public employers in Washington County, Maryland;
Allegany County, Maryland; Franklin County, Pennsylvania; and Berkeley
County, West Virginia.
F.
After evaluating the ability of the City to pay under § 38-13E,
the arbitrator panel may only consider the following evidence presented
by a party to the impasse at the arbitration hearing:
(1)
The interest and welfare of City taxpayers and service recipients;
(2)
Past collective bargaining agreements between the parties, including
past bargaining history that led to each agreement;
(3)
A comparison of wages, hours, benefits, and conditions of employment
of corresponding fire and law enforcement employees of other public
employers in Washington County, Maryland; Allegany County, Maryland;
Franklin County, Pennsylvania; and Berkeley County, West Virginia;
(4)
A comparison of cost of living in Washington County, Maryland; Allegany
County, Maryland; Franklin County, Pennsylvania; and Berkeley County,
West Virginia;
(5)
A comparison of the number of public sector police employees or public
sector fire employees, both gross and on a per capita basis, to the
number of residents of Washington County, Maryland; Allegany County,
Maryland; Franklin County, Pennsylvania; and Berkeley County, West
Virginia;
(6)
A comparison of wages and benefits of other City of Hagerstown employees;
and
(7)
Such other factors that are normally or traditionally taken into
consideration in the determination of wages, hours, and terms and
conditions of employment, through voluntary collective bargaining,
in public sector employment;
G.
Within 30 days of the arbitration hearing or the parties' submission
of post-hearing briefs, the panel will issue a final written award,
based solely on the evidence presented at the arbitration hearing,
that either:
(1)
Chooses between and sustains in its entirety either the total package
final offer of the parties who have declared impasse; or
(2)
Resolves all of the stipulated issues with a final award within the
range contained between the two final offers, that contains the agreed-upon
issues, and that briefly states an explanation as to why the selected
final offer was chosen (if a complete final offer is chosen) and why
the rejected offer was not, or briefly explains why the final award
was made and why the final offers were rejected; and
H.
Have copies of a final written award delivered to the parties who
have declared the impasse.
Upon a motion, notice, and after offering the parties who have
declared impasse an appropriate opportunity to be heard, the neutral
arbitrator panel may revise the final written award, if necessary,
to correct clerical or other ministerial errors at any time within
10 days after issuing the award.
The parties who have declared impasse may agree to modify the
final written award of the neutral arbitrator panel by a written agreement
that is executed by the parties to the impasse, and the final written
award as amended shall have full force and effect.
The final written award issued by the neutral arbitrator panel, or the final written award as modified in accordance with §§ 37-14, 37-15 and 37-18, and the memorandum of agreed issues shall be final and binding upon the parties who have declared the impasse and shall be implemented as part of the budget process for the appropriate fiscal years.
The parties who have declared the impasse may move to vacate
all or part of the final written award of the arbitrator panel by
filing a petition to vacate the arbitrator panel's final written
award in the Circuit Court for Washington County in accordance with
and subject to the Courts and Judicial Proceedings Article, § 3-224,
of the Maryland Code.
Should any part of the final written award be vacated pursuant
to a final order of the court of competent jurisdiction, the portions
of the final written award that are not vacated and the written memorandum
of agreed issues shall be severable and given full force and effect.
The parties shall share equally all costs and professional fees
of mediators and arbitrators engaged under this article, including
the cost of any recording services, court reports, and/or transcripts.
Each party to the impasse shall be separately and independently
responsible for its own legal expenses and fees associated with proceedings
under this article.
All mediation and arbitration proceedings shall be held within
the corporate limits of the City of Hagerstown unless the parties
otherwise agree in writing.
Nothing in this article shall be construed to permit either
AFSCME Local 3373 or IAFF Local 1605, or their members, to incite,
encourage, or participate in any strike, sympathy strike, walkout,
slowdown or other work stoppage of any nature.
The parties must execute the award, and any provision which
requires action in the City of Hagerstown budget must be included
in the next Mayor and Council approved fiscal year budget.
