It is the policy of Town and the purpose of this Police Department Labor Code to promote a fair, harmonious, peaceful and cooperative relationship between the management of the Town and the employees of the Town of Delmar Police Department, and to permit employees of the Delmar Police Department to participate in the formulation and implementation of personnel policies affecting their employment, and to protect and serve the public interest by assuring the effective, efficient, responsive, orderly and consistent operation of the Delmar Police Department.
[HISTORY: Adopted by the Mayor and Commissioners of the Town of Delmar, Maryland, as indicated in article histories. Amendments noted where applicable.]
[Adopted 6-8-2009 by Ord. No. 709]
It is the sense of the Mayor and Commissioners that the word "Commission," wherever used in Charter § C9-4, refers to the Mayor and Commissioners of the Town of Delmar.
As used in this article, the following terms shall have the meanings indicated:
An individual employed by the Town who has access to confidential information, including budgetary and fiscal data, subject to use by the Town in collective bargaining or in the adjustment of grievances, or works in a close and continuing confidential relationship assisting or aiding a management employee.
An individual employed by the Town and assigned to the Delmar Police Department as a sworn officer, provided that the term "employee" does not include the Chief of Police or police officers serving at the rank of Lieutenant or above or managerial employees, supervisory employees, or confidential employees.
[Amended 4-13-2020 by Ord. No. 746]
Any lawful organization which admits employees to membership and exists for the purpose, in whole or in part, of representing employees in collective bargaining with the Town regarding their terms and conditions of employment.
A dispute concerning the application or interpretation of the terms of a collective bargaining agreement.
The panel of three arbitrators, utilized to resolve any disputed issues arising out of the negotiation of a collective bargaining agreement.
Fifty percent plus one of the valid votes cast in an election conducted pursuant to § 55-6.
An individual employed by the Town who has authority to formulate policies that are applicable throughout a bargaining unit, or has a significant role in personnel administration, employee relations or the preparation and administration of Town budgets, or may assist directly in the preparation for and conduct of collective bargaining negotiations on behalf of the Town, or has a significant role in the administration of any collective bargaining agreements on behalf of the Town.
An activity by an employee organization or its members which is intended to induce, encourage, or coerce persons doing business with the Town to withhold, withdraw, or in any respect curtail their business relations with the Town.
The refusal or failure by an employee or group of employees to perform their duties of employment as assigned if a purpose of the refusal or failure is to induce, force, or require the Town to act or refrain from acting with regard to any matter, including the willful absence of a group of employees from their positions, and the engaging in a slowdown by employees, and the refusal of employees to perform job duties.
An individual employed by the Town authorized to effectively recommend to the Chief the following: suspend, promote, discharge, assign, reward, or discipline employees, or responsibly direct employees, or adjust the grievances of employees, effectively recommend any of the above actions.
Includes employee wages, hours of employment, compensated and uncompensated leave, expense allowances for employment-related clothing and equipment, retirement and/or pension system participation, participation in a deferred compensation program, training, discipline, promotional qualifications and examinations, job performance standards and grievance and safety procedures.
Employees shall have the right of self-organization, to form, join, assist or participate in any employee organization and to negotiate collectively through eligible representatives of their own choosing regarding their terms and conditions of employment. Employees shall also have the right to refrain from any and all such activities. Exercise of any rights pursuant to this section shall be subject to the Charter and applicable provisions of any law or ordinance and the terms of any collective bargaining agreement. Nothing in this chapter or in any collective bargaining agreement shall prohibit an employee from presenting, discussing or resolving any complaint, whether or not arising out of a collective bargaining agreement, directly with a supervisory or managerial employee or the Chief of Police, and without participation of any employee organization, provided that no such resolution shall be in derogation of any other employee's rights pursuant to law or any collective bargaining agreement.
Notwithstanding any other provision contained in this chapter, it is the exclusive right of the Town to determine the amount of funds it will allocate to its Police Department and to each of its other departments and governmental activities, to determine the mission of its public safety and law enforcement department, to set standards of service to be offered to the public, and to exercise control and direction over its organization and operations, including the right to determine shifts and the number of employees on each such shift or to subcontract work or use volunteers. It is also the right of the Town to direct its employees, to hire, promote, transfer, assign or retain employees in positions within the Police Department and, in that regard, to establish work rules. The Town also retains the right to suspend, demote, discharge or take any other disciplinary action against its employees for any reason, not inconsistent with law and, in the case of sworn police officers, subject to the provisions of the Law Enforcement Officers Bill of Rights or any amendment or successor thereto[1], or to relieve it employees from duty in the event of lack of funds, or for other legitimate reasons. The foregoing provisions of this section shall be a provision in every collective bargaining agreement reached between the Town and an employee organization. No collective bargaining agreement or impasse or grievance arbitration decision shall be binding on any party if said agreement or decision conflicts with or limits this section.
[1]
Editor's Note: See 11 Del. C. § 9200 et seq.
A.
Unless otherwise agreed by the Town, there shall be a unit of employees eligible for representation by an exclusive bargaining agent. The unit shall consist of all sworn police officers below the rank of Captain.
B.
An employee organization seeking recognition as exclusive bargaining agent for a unit of employees may file a petition seeking that recognition with the Town Manager in the form approved by the Town Manager.
C.
When a petition is presented to the Town Manager that demonstrates that at least 30% of the employees in Unit A or Unit B have stated in writing that they seek to be presented for purposes of collective bargaining by the petitioning employee organization and said employee organization is eligible to represent that unit of employees, the Town Manager shall, on behalf of the Town, grant recognition to the employee organization after verifying, by a secret ballot election conducted by the Board of Supervisors of Elections, that a majority of employees desire such representation. The secret ballot shall be conducted between 15 and 30 calendar days after the Town Manager determines that the petition satisfies the aforesaid 30% requirements. When an election is scheduled, other eligible employee organizations that demonstrate support by 10% of the employees in the same unit of employees may intervene within seven calendar days after the election date is announced, and such intervener may be on the ballot. Where two or more employee organizations are on the ballot and no employee organization receives the vote of a majority of the employees and a majority also do not vote against representation by any of the employee organizations, a runoff election shall be held within 30 calendar days after the first election date, with the choices being a vote for representation by the employee organization receiving the highest number of votes in the first election and a vote against representation by said employee organization.
D.
When an employee organization has been recognized, it shall have the exclusive right to represent the employees for the purpose of collective bargaining with the Town regarding the terms and conditions of employment of the represented employees.
E.
When an employee organization is recognized by the Town as the exclusive bargaining agent for a unit of employees, an employee or group of employees in that bargaining unit or the Town may file a petition with the Town Manager, in the form approved by the Town Manager, asserting that the recognized employee organization no longer represents a majority of the employees in said unit of employees. If the petition is filed by an employee or group of employees, the petitioner(s) must demonstrate that at least 50% of the employees in said unit of employees have stated in writing that they do not wish to be represented by said employee organization. Upon receipt of a petition by the Town or by an employee or group of employees that meets the aforesaid 50% requirement, the Town Manager shall, on behalf of the Town, certify that the employee organization is no longer recognized as the exclusive representative of that unit of employees.
F.
No petition may be filed pursuant to this section when the unit of employees affected by the petition is covered by a collective bargaining agreement that expires later than the June 30 that next follows the petition date, unless said agreement will have been in effect for three years or more as said of June 30. After October 31, 2008, a petition may be filed only during the month of November in each year. No election shall be conducted more than once in any 12 months among the employees in any unit of employees. The same employee organization (including its parent body, any subsidiary organization of said parent body or any affiliate thereof) may not, at the same time, be the exclusive representative of the employees in more than one unit of employees.
A.
Upon recognition of an employee organization as the exclusive representative of a unit of employees, the Town and the employee organization shall have the duty, through appropriate officials or their representatives, to negotiate collectively and in good faith with respect to the terms and conditions of employment of those employees. The obligation to negotiate in good faith does not require either party to agree to a proposal of the other or to make any concession. Negotiations for a first collective bargaining agreement between the parties or for modification or termination of an existing collective bargaining agreement shall commence within 10 business days after either party makes a written request of the other to commence such negotiations, provided that said request to commence negotiations for modification or termination of an existing contract shall not be made earlier than 180 calendar days prior to the expiration date of said existing collective bargaining agreement.
B.
Negotiations with an employee organization which has been accorded exclusive recognition may be conducted during the duty hours of the employee organization representatives involved in the negotiations, provided that their attendance does not interfere seriously with the normal operations of the Town and that they have given at least two days advanced notice to the Chief of Police.
C.
The Town Manager shall act as the Town's primary representative for the purpose of conducting collective bargaining negotiations and to maintain communication between the Town and the employee organization. The employee organization shall designate a primary representative for the purpose of conducting negotiations and shall provide the Town Manager with the name and the necessary contact information of the employee organization's primary representative.
D.
When the representatives of the parties reach agreement on the terms of a collective bargaining agreement, they shall prepare a written agreement and submit it to the Mayor and Commissioners for its ratification or rejection. However, any agreement governing the relationship between the Town and a recognized employee organization shall conform to the provisions of this chapter and all other applicable laws of the Town, state or federal government. In the event of any conflict or inconsistency between a collective bargaining agreement and any such law, the provisions of said law shall prevail.
E.
Impasse panel. In the event that the parties are unable to reach an agreement by February 1 of any year in which collective bargaining is being conducted, the Town and the employee organization are authorized to submit to binding arbitration any unresolved issues arising out of collective bargaining. The disputed issues shall be submitted to an impasse panel consisting of three individuals who shall be selected as follows: 1) the Town and the employee organization shall each select one member within three business days after the request by either party for convening an impasse panel; 2) the two members so selected shall select a third member within three business days after their selection. If the two members are unable to agree to a third member of the impasse panel, they shall make their selection from a panel maintained by an independent third-party agency agreeable to both parties. If the parties are unable to agree on the independent third-party agency, the third member shall be selected from a panel provided by the Federal Mediation and Conciliation Service. The third member of the impasse panel so selected shall serve as the panel's chairperson. The impasse panel shall hold a hearing on all disputed issues within 30 calendar days of the selection of its chairperson and shall issue its final decision within 30 calendar days of the conclusion of the hearing. The decision of the panel shall be final and binding upon the Town and the employee organization. The cost of the impasse panel proceedings (excluding any costs attributable to an impasse panel member unilaterally selected by one of the parties) shall be divided equally between the Town and the employee organization. Notwithstanding the aforementioned process, nothing shall be construed herein to prohibit the impasse panel from mediating the disputed issues at any time prior to the issuance of its final and binding decision.
F.
The panel from which the third member is selected pursuant to Subsection E shall consist of seven members of the National Academy of Arbitrators, and the selection shall be determined by the alternate striking of names (the first to strike being determined by coin toss), with the last unstruck name being the third member. If the third member so selected is unwilling to serve or cannot serve within the time specified in Subsection E, the next to last name shall be the third member, and so on. Members of the impasse panel designated by the Town and the employee organization are not required to be neutral, except that they may not be employees of the Town or the employee organization (or its parent or any affiliates).
G.
If unresolved bargaining issues are to be submitted to an impasse panel pursuant to Subsection E, each party shall serve on the other party, no later than five business days after the third member is selected, a complete proposal, including both agreed and disputed issues. Each party shall serve the other party, no later than 10 business days after the third party is selected or five business days prior to the opening of the impasse hearing, whichever is earlier, a final contract proposal including both agreed and disputed issues. The final contract proposal of each party, as to any disputed issue, shall be no less favorable to the other party than its last previous proposal on that issue. As to each separate disputed issue, the impasse panel may choose only the Town's final proposal or the employee organization's final proposal as they are set forth in the final contract proposal previously served by each party on the other party.
H.
Decision.
(1)
In making its decision, which shall be in writing and include it opinion as to each issue before it, the impasse panel shall take into consideration, among other pertinent factors:
(a)
The existing terms and conditions of employment of the bargaining unit employees.
(b)
The terms and conditions of employment of other individuals employed by the Town and the impact its decision would have on those individuals and on the other governmental activities of the Town.
(c)
The terms and conditions of employment of employees performing like duties under like conditions in comparable police municipal departments in the local area, also taking into account differences in cost of living and ability to pay in the other jurisdictions.
(d)
The availability to the Town of discretionary, general operating funds, not including funds already committed or budgeted, or funds in capital expenditure or contingency ("rainy day") funds and is exclusive of Delmar, Delaware, funds.
(e)
The effect of any proposal on the ability of the Police Department to accomplish its mission.
(2)
The impasse panel may not choose any proposal that would require the Town to treat or result in the Town treating bargaining unit employees differently from other individuals employed by the Town with regard to any aspect of health care benefit plans or retirement/pension plans, and any decision contrary to this provision shall be void and the other proposal on that issue shall be binding.
I.
If a collective bargaining agreement expires without there being a successor agreement resulting either from an agreement of the parties or from a decision of an impasse panel, the Town may unilaterally institute all or any part of its final contract proposal pursuant to Subsection G, provided that the Town may agree in writing to waive its rights pursuant to Subsection G.
J.
The parties may, by written agreement, waive any of the time limits and dates set forth in this section.
A.
The Town and any agent thereof are prohibited from engaging in the following unfair labor practices with respect to this chapter:
(1)
Interfering with, restraining or coercing employees in the exercise of their rights set forth in § 55-4;
(2)
Encouraging or discouraging membership in an employee organization by discrimination in employment, seniority, promotion or other terms or conditions of employment;
(3)
Controlling or dominating an employee organization by any means; and/or
(4)
Failing to negotiate in good faith with an employee organization.
B.
An employee organization and any agent thereof are prohibited from engaging in the following unfair labor practices with respect to this chapter:
(1)
Interfering with, restraining or coercing employees in the exercise of their rights set forth in § 55-4;
(2)
Inducing the Town or its representatives to commit any unfair labor practices;
(3)
Failing to negotiate in good faith with the Town of its representatives;
(4)
Interfering with, restricting or coercing the Town in its selection of representatives to deal with any employee organization or to exercise the Town's authority in dealing with employees represented by a recognized employee organization; and/or
(5)
Engaging in a secondary boycott.
If there is a provision for checkoff in a collective bargaining agreement, the employee organization party to said agreement, upon the presentation of payroll deduction authorization cards to the Town's financial department, in a form approved by the Town and duly executed by individual employees, shall be entitled to have each such employee's membership dues or service fees deducted from the employee's wages and remitted to the designated employee organization. Any such authorization may be revoked by the employee at will upon 30 days' written notice by the employee to the employee organization and the Town's Finance Department or immediately upon the expiration of a collective bargaining agreement applicable to such employee.
If a dispute arises between the Town and any employee organization as to a question concerning representation arising under § 55-6, or if there is a claim by the Town or any employee organization that there has been a violation of § 55-8, the dispute or claim shall be heard by a single hearing officer selected by the parties in the same manner as the chairperson of an impasse panel is selected pursuant to § 55-7, and the cost of such proceeding shall be apportioned in the same manner as set forth in § 55-7. The hearing officer shall issue a written decision which includes his opinion as to the matter before him and, where appropriate, a remedy. The hearing officer may not order a remedy that is not permitted under the federal National Labor Relations Act.[1] The hearing officer's decision, if it conforms to the Town's Charter and Code and all other applicable laws, shall be final and binding on the Town and the employee organization which are the parties to the proceeding. Where not otherwise provided or governed by applicable law, including this chapter, the hearing officer, in making decisions pursuant to this section, may be guided, but not bound, by the law under the federal National Labor Relations Act. Any hearings conducted pursuant to this section or § 55-7 shall not be open to the general public and the number of members or employees of the parties (other than participants in the hearing) who are permitted to attend a hearing shall be determined by the hearing officer or the chairperson of an impasse panel, whichever is applicable.
[1]
Editor's Note: See 29 U.S.C. § 151 et seq.
A collective bargaining agreement between the Town and an employee organization may provide procedures for consideration and resolution of grievances by arbitration. In the event that an employee claims that there has been a violation of the laws, rules or regulations of the Town or the state affecting the terms or conditions of the employee's employment, and said claim may also be a grievance as defined in this chapter, the employee has the right to choose whether to proceed through the grievance procedure or through a Town or state dispute resolution procedure which may be applicable to such claims. Once an employee has elected to pursue a specific procedure, the employee is bound by that election and subsequently may not choose to follow a different procedure. If the employee elects the Town or state procedure, the claim may not also be the subject of a grievance as defined in this chapter and an employee organization shall have no representational status with regard to the employee's claim under the Town or state dispute resolution procedure, except where otherwise required by law. Where a matter may be the subject of both grievance and an unfair labor practice claim, the Town or employee or organization or employee seeking relief may proceed only through one process (i.e., grievance or unfair labor practice claim).
Strikes are prohibited. An employee organization shall not engage in, initiate, sponsor, support or direct a strike. If a strike occurs that is in violation of the preceding sentence, the employee organization representing any employees engaging in a strike shall publicly repudiate said strike and shall take every affirmative action requested of it by the Town to effect immediate termination of the strike. If any employee organization violates this provision, its recognition as exclusive representative, if any, may, at the Town's option, be revoked and any collective bargaining agreement to which it is a party may, at the Town's option, be annulled, and it shall not be eligible, without the consent of the Town, to participate in elections, or be recognized as an exclusive representative for a period of one year thereafter for each calendar day in which it is acting or failing to act in violation of this subsection. Any employee participating in a strike may, at the Town's option, be terminated or otherwise disciplined without recourse to any contractual procedure or any procedure in this chapter and without regard of any other employee engaging in such strike.