Baltimore County, Maryland and Lodge 4 of the Fraternal Order of Police (FOP) bargain under a local collective bargaining code. One provision of the code defines the rand-and-file law enforcement collective bargaining unit as including lieutenants.
Notwithstanding the code provision, the County made a bargaining proposal to the FOP to remove lieutenants from the bargaining unit. When the FOP refused to agree, the matter ended up in arbitration.
For four reasons, the Arbitrator rejected the County’s proposal. First, the Arbitrator found that “lieutenants are in the representation unit in the police department; whether or not the County’s final position is found to have merit, it cannot be lawfully implemented unless the code provisions are first amended. The Council determined that, despite knowledge of their quasi-supervisory or supervisory responsibilities, lieutenants had greater community of interest with those ranked sergeant and below than with those ranked captain and above; the Council drew the line relative to the representation unit differently in the Fire Department, including captains and below in the representation unit that included firefighters.”
The second basis for the Arbitrator’s ruling was his conclusion that the County’s proposal was not mandatorily negotiable. As the Arbitrator put it, “changes to the representation unit are not mandatory subjects of bargaining and insistence upon a change to the recognition unit to the point of impasse is a refusal to bargain in good faith and an unfair labor practice. The representation unit should not be subject to the pressures of the interest arbitration process. It is simply inconsistent with the principle of good faith bargaining to question the representational status of the union to be used as a bargaining chit to extract concessions in other areas.”
Third, the Arbitrator found that the County only included its proposal regarding lieutenants in its final offer made in the arbitration process, and had never actually made the proposal directly to the FOP. The Arbitrator concluded that “it is not clear how the obligation to bargain in good faith to the point of impasse can be satisfied if a significant proposed change is made for the first time after bargaining has ceased and impasse has been reached.”
Finally, the Arbitrator also held that the County’s asserted justification for removing lieutenants from the bargaining unit – so it could stop paying them overtime and could save money – could possibly be achieved without the structural step of removing lieutenants from the unit: “The ‘problem’ could be ‘solved’ by the much less drastic step of negotiating changes in or even eliminating entirely those contractual payments to lieutenants.”
Baltimore County, Maryland, Interest Arbitration FY 2013 Agreement (Jaffe, 2012).