Wednesday, January 21, 2009

Will the County Council Destroy Collective Bargaining in MoCo? (Updated)

Imagine you are buying a house. You offer $500,000 and demand a $5,000 rebate towards closing costs and an inspection contingency. The seller wants $600,000 and offers no rebate or contingency. After a week of negotiation, you give up the rebate and contingency and agree to a price of $540,000. On settlement day, you sign the contract and hand it to the seller. The seller changes the price to $580,000, signs and expects you to abide by the new deal – his deal. Is that fair?

Of course not. But that is how some on the County Council want to deal with public employees. And that would mean the end of public collective bargaining – and indeed public sector unionism – as we know it.

The issue that brought the council to this point is the county’s disability system. Last summer, the county’s Inspector General found that 62% of the police officers who retired between July 2004 and March 2008 were approved for disability benefits. One officer was approved after pleading guilty to theft. Another finished in second place in a fitness contest a year after being approved. Two more were approved after being cleared to return to work on full-duty status in workers compensation proceedings. In testimony to the County Council’s Public Safety Committee, the Inspector General described the program as having “insufficient internal controls and management oversight” to prevent abuse.

That prompted Council Members Phil Andrews and Duchy Trachtenberg to propose a bill that would overhaul the disability program. Their consternation with the program is understandable. The problem is that retiree benefits – including disability benefits – are a mandatory subject of bargaining under the law. That means if either labor or management wants to bargain it, the two parties are obligated to do so. The current disability program is the product of negotiations between the Fraternal Order of Police Lodge 35 and the county government going back many years. (In fact, the police and the County Executive are currently negotiating changes to the program to prevent the conduct that concerns Council Members Andrews and Trachtenberg.) A revision by the council would effectively involve rewriting a portion of the police union’s collective bargaining agreement (CBA).

In the private sector, it is illegal for management to unilaterally rewrite CBAs outside of bankruptcy court. Even there, any changes must be approved by a judge. But the council’s staff attorneys conclude that the County Council does indeed have the legal right to rewrite CBAs negotiated directly with public employee unions. The staff’s reasoning is that Maryland’s Constitution and the county’s charter both grant the council wide authority to enact and amend county legislation, including bills that involve mandatory subjects of bargaining. The County Executive, who negotiates agreements with the police, the firefighters and the government employees (MCGEO) may be bound by the terms of CBAs but the County Council is not. (The staff does not address CBAs negotiated by the school system, which is a state-chartered entity.)

Suppose the staff is right and the County Council has the legal authority to rewrite, in whole or in part, CBAs. Should it?

For decades, Montgomery County has recognized the right of its employees to collective representation and no politician would dare state otherwise. Part of that representation involves collective bargaining – real bargaining with give and take. Think about the negotiations you have undertaken in your life: buying a house, buying a car, making a business deal, even settling a conflict with your spouse. Each side likes some things in the resulting deal and dislikes others. The only way the deal gets approved is as a package, with each side giving as well as getting. If either side has the unilateral right to change the deal after the fact, then there is no bargaining – only domination. And that applies every bit to CBAs as it does to every other agreement.

The County Council already has more power in labor negotiations than most employers. Maryland public employee unions, unlike private sector unions, are forbidden to strike. The council, unlike private employers, can choose to “underfund” agreements, thereby cutting compensation obligations. And the council can vote down CBAs applying to the police, the fire fighters and the government employees outright. Those sources of leverage alone have produced voluntary agreements by the school employees to give up their cost of living adjustments. Nothing is stopping the council from pressuring the County Executive and the police union to fix the program and, if they are dissatisfied with the result, rejecting it and sending the parties back to the table.

But that is not enough for Council Members Andrews and Trachtenberg. Their bill envisions their having first, final and unilateral say on any and all conditions of work – line by line – regardless of any negotiations by the County Executive and the employees. That is a sweeping over-reaction to the problems in the disability program that are, after all, now being bargained. And the precedent they intend to establish would eventually destroy the ability of public employees to exercise any real voice in their workplace.

County employees are already giving up their pay increases. Now must they give up their collective bargaining rights as well?

Update: Maryland Moment reports that the Leggett administration is asking the County Council to hold off on legislation until negotiations are concluded. Separately, I hear there is very little support from the rest of the council for the Andrews/Trachtenberg bill.

Disclosure: The author is the Assistant to the General President of the United Brotherhood of Carpenters and has been employed in the labor movement since 1994.