01.01.1996.13

EXECUTIVE ORDER 01.01.1996.13 Procedures for Labor-Management Relations in the Executive Branch of State Government

A. Except as provided in paragraph B., this Executive Order applies to all employees of:

(1) The principal departments within the Executive Branch;

(2) The Maryland Insurance Administration;

(3) The State Department of Assessments and Taxation; and

(4) The State Lottery Agency.

B. This Executive Order does not apply to employees of the Mass Transit Administration, as that term is defined in §7-601(a)(2) of the Transportation Article.

C. Employees of the Executive Branch shall have the right to:

(1) Organize, form, join or assist any employee organization;

(2) Bargain collectively through representatives of their own choosing;

(3) Engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection insofar as any such activity is not prohibited by any other law of the State of Maryland or this Executive Order.

D. The mediation unit of the Department of Labor, Licensing, and Regulation shall be designated by the Governor to administer this Order and shall have the power, to the fullest extent permitted by law, to do the following:

(1) Hold hearings and conduct elections;

(2) Make determinations regarding certification and decertification of exclusive bargaining representatives;

(3) Resolve other issues that may arise under this Order; and

(4) Promulgate such guidelines and establish such procedures as may be necessary for the proper implementation of this Order.

E. The following terms shall have the meanings indicated:

(1) "Collective bargaining," to "bargain collectively," or to "negotiate" mean the mutual obligation of the employer and the employee exclusive bargaining organization to negotiate in good faith at reasonable times and places with respect to wages, hours, and other terms and conditions of employment. The parties, upon the completion of negotiations, shall execute a written memorandum of understanding incorporating the terms of any agreement reached, and, to the extent they require legislative approval or the appropriation of funds, such terms shall be recommended to the Legislature for approval or the appropriation of funds, as may be necessary. The duty to bargain shall include the obligation to negotiate in good faith for the purpose of resolving any questions arising under an existing memorandum of understanding. Notwithstanding the foregoing, the employer shall not be required to negotiate with regard to any matter that would be inconsistent with applicable law, and the employer may negotiate and reach agreement with regard to any such matter only if it is understood that the agreement with respect to such matter cannot become effective unless the applicable law is amended to eliminate any such inconsistency.

(2) "Employee" means an individual employed by the Executive Branch, unless the individual is any of the following:

(a) A student employee;

(b) A temporary employee;

(c) A member of a board or commission;

(d) A confidential employee;

(e) A managerial employee;

(f) A supervisory employee;

(g) An individual in the custody of the Department of Public Safety and Correctional Services;

(h) The chief administrative or executive officer of an agency.

(3) "Confidential employee" means an employee:

(a) Who has access to confidential or discretionary information regarding the formulation of policy or procedures;

(b) Whose functional responsibilities or knowledge concerning employee relations makes the employee's membership in an employee organization incompatible with the employee's duties; or

(c) Who is the personal secretary of the chief administrative or executive officer of an agency.

(4) "Managerial employee" means an individual who is:

(a) Engaged predominantly in executive and management functions; or

(b) Charged with the responsibility of directing the effectuation of management policies and practices.

(5) "Professional employee" means an employee engaged in work:

(a) Predominantly intellectual and varied in character;

(b) Involving the consistent exercise of discretion and judgement in its performance;

(c) Of such character that the result accomplished cannot be standardized in relation to a given period of time; and

(d) Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction in an institution of higher learning or a hospital.

(6) "Supervisor" means an individual having authority in the interest of the Executive Branch to hire, transfer, suspend, lay off, recall, promote, discharge other employees, or effectively to recommend such action, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgement.

(7) "Temporary employee" means an individual who is employed in a temporary position for not more than 90 days.

(8) "Employee organization" means an organization in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, hours, and other terms and conditions of employment of such employees.

(9) "Employee exclusive bargaining representative" and "exclusive bargaining representative" mean an organization certified as the exclusive bargaining representative pursuant to the provisions of this Order.

(10) "Appropriate bargaining unit" means one of the following units:

(a) Labor and trades;

(b) Administrative, technical, and clerical;

(c) Regulatory, inspection, and licensure;

(d) Health and human service nonprofessionals;

(e) Health care professionals;

(f) Social and human service professionals;

(g) Engineering, scientific, and administrative professionals;

(h) Public safety and security; and

(i) Sworn police officers.

F. The Secretary of Personnel, or such other official or officials as may be designated by the Governor for this purpose, shall determine the assignment of each employee to an appropriate unit, based on the employee's job classification and position. In determining the appropriateness of the assignment of an employee to an appropriate unit, the following factors shall be considered:

(1) The principles of efficient administration of government, including limiting the fragmentation of government administrative authority;

(2) The existence of a community of interest among the employees assigned to the bargaining unit;

(3) The recommendations of the parties involved.

G. The official or officials designated by the Governor to administer this Order may certify an employee organization as the exclusive bargaining representative of the members in an appropriate bargaining unit when the employee organization has been selected by a majority of those voting in a representation election conducted among the employees in the unit. Such official or officials shall have the authority to resolve any objections to the conduct of any representation election held pursuant to this Order; provided, that in any election involving more than one employee organization, such organizations can agree, subject to the approval of such officials, that disputes regarding specified issues will be resolved by an impartial third party arbitrator selected in accordance with such agreement, and the decision or decisions of such arbitrator shall be final and binding on such organizations; and provided further, that any such agreement shall provide that the costs of the arbitrator shall be shared equally by the employee organizations involved.

H. An employee organization may petition for certification by submitting a petition for representation to the official or officials designated by the Governor to administer this Order. The petition must be accompanied by a showing of interest supported by 30 percent of the employees in the appropriate unit indicating their desire to be exclusively represented by the petitioner for the purpose of collective bargaining. No petition for certification may be filed prior to August 21, 1996.

I. Within 5 days of determination that valid petition has been submitted, the official or officials designated by the Governor to administer this Order shall notify interested employee organizations on the pending election petition.

J. Any interested employee organization that wishes to intervene must submit a petition of intervention which must be accompanied by a showing of interest supported by 10 percent of the employees in the appropriate bargaining unit indicating their desire to be exclusively represented by the intervenor for the purpose of collective bargaining, which petition must be filed within 15 days of notice of the pending election petition.

K. An election under this Order shall be held in any unit within 90 days after the filing of a valid petition for election in such unit in accordance with guidelines established by the official or officials designated by the Governor to administer this Order. In any initial representation election conducted pursuant to this Order, the choice of "no representative" shall appear on the ballot. In the event that none of the alternatives listed on the ballot receives a majority of the valid ballots cast in any initial representation election held pursuant to this Order, a run-off election shall be held between the two choices that received the highest number of votes cast in the initial election.

L. Certification of an employee exclusive bargaining representative shall continue so long as such organization satisfies the criteria of this Order and subsequent guidelines applicable to certification. A petition to decertify an existing exclusive bargaining representative may be filed in the same manner as a petition for certification, as provided in paragraph H. of this Order, except that no decertification petition may be filed for any bargaining unit if:

(1) An exclusive bargaining representative for that bargaining unit has been certified within the preceding 2 years; or

(2) The bargaining unit has in effect a valid memorandum of understanding that, by its terms, does not exceed 3 years in duration; provided, that the limitation imposed by this paragraph shall not bar the filing of a decertification petition within the 90-day period immediately preceding the expiration of such memorandum of understanding.

M. If a decertification petition is filed, the existing exclusive bargaining representative shall be deemed an intervenor on that petition and will not be required to submit the showing of interest that would otherwise be required by paragraph J. of this Order. Nothing in this paragraph shall require that a representation election be conducted in any unit within 12 months after a valid election with respect to such unit had been held pursuant to the provisions of this Order.

N. Certification of an employee exclusive bargaining representative shall not preclude any employee or group of employees, regardless of employee organization membership, from bringing matters of personal concern to the attention of appropriate officials with a representative of his/her own choosing in a grievance proceeding held pursuant to a memorandum of understanding.

O. An employee organization certified as the exclusive bargaining representative of employees of an appropriate bargaining unit shall be:

(1) Entitled to speak on behalf of all employees in the unit and shall be responsible for representing the interests of all such employees without discrimination and without regard to employee organization membership;

(2) Exclusively permitted to have organizational membership dues collected by payroll deduction upon signed written request of employee conforming to law; except that any other organization that qualifies for payroll deduction of dues pursuant to §6-402 of the State Personnel Article of the Annotated Code of Maryland shall continue to be eligible to receive payroll deduction of dues for as long as it remains so qualified; and

(3) Entitled to meet and negotiate with the Governor or the Governor's designee on wages, hours, and working conditions in an effort to reach an agreement subject to the approval of the Governor.

P. Managerial and supervisory employees are directed to refrain, to the fullest extent permitted by law, from:

(1) Interfering with, restraining, or coercing Executive Branch employees in the exercise of rights granted by this Order;

(2) Interfering with, restraining, or coercing an Executive Branch employee with respect to selecting a representative for purposes of negotiating collectively or the adjustment of grievances;

(3) Refusing to bargain collectively with the employee exclusive bargaining representative as required in this Order; or

(4) Refusing to negotiate in good faith or to execute or implement any memorandum of understanding negotiated pursuant to this Order.

Q. It shall be a violation of this Order for any employee organization which has been certified as the exclusive representative of employees under this Order to engage in a strike or work stoppage against the State of Maryland. An employee organization shall forfeit its status as the exclusive representative of employees under this Order if the organization engages in a strike or work stoppage against the State of Maryland.

R. This Order may be revoked or amended by the Governor at any time.

S. The provisions of this Order shall in no way diminish or infringe any rights, responsibilities, power or duties conferred by the Constitution of the State of Maryland and the Annotated Code of Maryland.

T. In the event that a challenge to any provision of this Order results in a judicial determination that such provision is contrary to law, such provision shall be deemed separable from all other provisions of this Order.

Effective date: May 24, 1996 (23:13 Md. R. 923)