Wednesday, April 08, 2009

A Heavy Blow to Public Collective Bargaining in MoCo

A new decision by Montgomery County Labor Relations Administrator Andrew M. Strongin that the County Executive does not need to abide by collective bargaining agreements threatens significant damage to public sector unionism for police, fire fighters and non-school employees as we know it.

The decision has its roots in County Executive Ike Leggett’s decision not to fund the career Fire Fighters’ wage increase in his FY 2010 budget proposal. The County Executive had never renegotiated the Fire Fighters’ agreement to eliminate their cost-of-living increase, but he eliminated funding for the increase in his budget anyway. The Fire Fighters filed a complaint with the Labor Relations Administrator (LRA) alleging that the County Executive was bound by county law to provide the increases in his budget proposal. (Regardless of what the Executive proposes, no one challenges the ability of the County Council to underfund contracts.) The union cited two sections in the County Code:

Section 33, 153(l):

In each proposed annual operating budget, the County Executive must describe any collective bargaining agreement or amendment to an agreement that is scheduled to take effect in the next fiscal year and estimate the cost of implementing that agreement. The annual operating budget must include sufficient funds to pay for the items in the parties' final agreement. The employer must expressly identify to the Council by April 1, unless extenuating circumstances require a later date, all terms and conditions in the agreement that:

(1) require an appropriation of funds, or

(2) are inconsistent with any County law or regulation, or

(3) require the enactment or adoption of any County law or regulation, or

(4) which have or may have a present or future fiscal impact.

If a later submission is necessary, the employer must specify the submission date and the reasons for delay to the Council President by April 1. The employer must make a good faith effort to have the Council take action to implement all terms and conditions in the parties' final agreement.
Section 33, 154(a)(8) states:

(a) The employer and its agents or representatives must not:

(8) directly or indirectly oppose the appropriation of funds or the enactment of legislation by the County Council to implement an agreement reached under this Article...
County Attorney Leon Rodriguez, representing the Leggett administration, replied that the Code was subordinate to the Charter, which is effectively Montgomery County’s Constitution. Rodriguez asserted that the County Executive’s authority to propose budgets as granted by Charter Section 303 was “legislative” in nature and therefore could not be limited by statutes, including those that regulated collective bargaining. According to Rodriguez, the County Code could limit the County Executive’s executive conduct (such as his requirement to negotiate with the union), but not could limit his “legislative” function of proposing a budget. Only a Charter Amendment can bind county legislators. (These arguments are reminiscent of former Vice President Dick Cheney’s contentions that he was actually a part of the U.S. Congress and therefore not subject to laws covering the Executive Branch.)

In his decision, the LRA found, “the County Executive manifestly violated the terms of Secs. 33-153(l) and 33-154(a)(8) of the Bargaining Law, and thereby committed a prohibited practice as defined by the County Council...” But the LRA went on to conclude that these sections of the law were “neither valid nor enforceable.”


The LRA agreed with Rodriguez’s position that the County Executive is acting in a legislative capacity when he is submitting a proposed budget to the council. The LRA then takes note of Section 510A of the Charter, which states:

The Montgomery County Council shall provide by law for collective bargaining with binding arbitration with an authorized representative of the Montgomery County career fire fighters. Any law so enacted shall prohibit strikes or work stoppages by career fire fighters.
Doesn’t this section of the Charter require the Executive to respect collective bargaining agreements? According to the LRA, it does not. He states, “There simply is not any necessary conflict between the Council’s obligation to provide for collective bargaining with the firefighters and the Executive’s power to propose an operating budget.”

The LRA ignores one central fact: roughly 80% of the operating budget is accounted for by employee compensation. If the charter provides for collective bargaining, wouldn’t it make sense that the Executive take account of the results of that bargaining in his proposed budget? The LRA says no: collective bargaining outcomes have no relationship to the budget. That may fly in the face of reality, but the LRA has made his decision.

The consequences to the Fire Fighters, as well as the police and the government employees (MCGEO), are enormous. (The school employees negotiate with the Superintendent and are regulated by state law.) If the LRA’s decision stands, no County Executive will ever have to abide by a collective bargaining agreement in formulating his budget. That means the union contracts would become a set of promises or wish lists to be fulfilled at the Executive’s option.

On the other hand, if the Fire Fighters appeal and a court upholds the decision, labor faces even more trouble. Now a court precedent would be established that could last for decades and maybe even spread to other parts of the state. An administrative decision might be contained through negotiation, but a court decision against labor would be an unmitigated disaster for all county employees.