Balt. Cnty. v. Balt. Cnty. Fraternal Order of Police

• Citation: 220 Md.App. 596,104 A.3d 986
• Decision Date: 17 December 2014
• Docket Number: No. 099, Sept. Term 2014,No. 1904, Sept. Term, 2013,1904, Sept. Term, 2013,099, Sept. Term 2014
• Parties: BALTIMORE COUNTY, Maryland v. BALTIMORE COUNTY FRATERNAL ORDER OF POLICE, LODGE NO. 4. Baltimore County, Maryland v. Baltimore County Fraternal Order of Police, Lodge No. 4.
• Court: Court of Special Appeals of Maryland

220 Md.App. 596

104 A.3d 986

BALTIMORE COUNTY, Maryland

v.BALTIMORE COUNTY FRATERNAL ORDER OF POLICE, LODGE NO. 4.

Baltimore County, Maryland

v.Baltimore County Fraternal Order of Police, Lodge No. 4.

No. 1904, Sept. Term, 2013

No. 099, Sept. Term 2014

Court of Special Appeals of Maryland.

Dec. 17, 2014.

James J. Nolan, Jr. (Michael E. Field, Co. Atty., on the brief), Towson, MD, for Appellant.

Matthew Clash–Drexler (Bredhoff & Kaiser, PLLC, on the brief), Washington D.C., for Appellee.

Panel: MEREDITH, WRIGHT and HOTTEN, JJ.

Opinion

MEREDITH, J.

Baltimore County, appellant, mounts a variety of challenges to an arbitration award regarding retirement benefits that was issued in 2008, affirmed in 2010 by the Circuit Court for Baltimore County, and ultimately affirmed again in 2012 by the Court of Appeals in FOP Lodge No. 4 v. Baltimore Co., 429 Md. 533, 57 A.3d 425 (2012), reconsideration denied, 429 Md. 533, 57 A.3d 425 (2013). Although the County contends that it is not appealing the arbitration award itself, but rather its enforceability, that contention is undermined by the arguments the County makes. In the rulings which led to the present consolidated appeals, the Circuit Court for Baltimore County held that, in accordance with the law of the case doctrine, the County was required to comply with the previously confirmed arbitration award. Under protest, the County did pay the amount due as a result of the arbitration award, but continues to challenge the enforceability of the award.

QUESTIONS PRESENTED

The County presented nine questions for our review, the majority of which had already been raised in proceedings prior to the previous appeal. The primary focus of the current appeal is:

Did the trial court correctly apply the law of the case doctrine?¹

For the reasons that follow, we affirm the judgments of the Circuit Court for Baltimore County.

FACTS AND PROCEDURAL HISTORY

This case has its roots in a grievance filed in 2007, although the backdrop to that grievance extends back to 1991. Appellee, FOP Lodge No. 4 (“appellee” or “FOP”), is the exclusive bargaining agent for the Baltimore County Police Department. Periodically, the FOP and the County negotiate a Memorandum of Understanding (“MOU”) setting forth each party's rights and obligations. In 1991, owing to what the County has characterized as a bad economic climate, the County offered its eligible employees a retirement incentive program; among the County employees to whom it applied were FOP members. The retirement incentive program provided that eligible officers who retired on or before January 31, 1992, were guaranteed a 90/10 health-insurance subsidy split; that is, it was guaranteed to those retirees that the County would pay 90% of their health-insurance premium, and the retiree would pay 10%.

The County notified those employees who did not take advantage of that incentive program that the health insurance split would be as follows: “An individual who retires on or after February 1, 1992, with 30 or more years of creditable service will receive the same subsidy as an active employee and that subsidy may go up or down as a result of labor negotiations[.]” But, as part of the negotiations for the 1996 MOU, which took effect on July 1, 1995, the FOP and the County agreed that an 85/15 split would apply retroactively to those officers who retired between February 1, 1992, and July 1, 1995; they were, at that time, “locked in.” The specific language that “locked in” this split stated: “The health insurance subsidy in place at the time of retirement shall remain in effect until the retiree becomes eligible for Medicare.” It was the FOP's position that the practical effect of this provision was to guarantee an 85/15 subsidy split to those retirees.

This arrangement was repeated in subsequent MOUs without dispute until the “2008 MOU” that would become effective July 1, 2007, and run through June 30, 2008. During negotiations about that MOU, the County, citing runaway health-care costs, informed the FOP that it intended eventually to move to an 80/20 split, with a one-percent decrease in the County's contribution to take effect each year in five successive years. The County proposed to change the benefit to an 84/16 split in 2008, followed by an 83/17 split in 2009, and so on. The FOP voted against this change, but it was nevertheless accepted by the Health Care Review Committee, the official bargaining agent as to healthcare issues for several unions for County employees, including the FOP. The County applied the less favorable split to all retirees, including those who had retired when there were MOUs in effect which included language the FOP considered a lock in of benefits.

Pursuant to the procedures outlined in the relevant MOU, FOP filed a grievance against the County, alleging that the proposed downward adjustment of the health-care subsidy violated Section 7.3(a) and (c) of the 2007 MOU.² The grievance was denied by the Labor Commissioner on November 6, 2007; the Labor Commissioner concluded that, because FOP was complaining about a violation of Section 7.3 of the 2007 MOU, and that MOU expired on June 30, 2007, those sections were “no longer controlling,” and the County could not have violated them.

FOP then demanded arbitration pursuant to the dispute-resolution provision of the MOU. On May 9, 2008, Arbitrator Richard Bloch, Esquire, conducted a hearing. One of the arguments made by the County was that the grievance had not been timely filed because it was not filed within ten workdays after the 2007 MOU's expiration on July 1, 2007. Rather, the grievance was filed on September 14, 2007, which was within ten workdays of September 1, 2007, the date on which the County's new 84/16 split began to be reflected in the retirees' health-insurance premiums. The main argument made by the County, however, was that there was nothing left to either grieve or arbitrate relating to the now-expired 2007 MOU. In his decision, Arbitrator Bloch rejected both of these contentions. Because the arbitrator's findings have been affirmed in subsequent proceedings, and, we will hold, remain binding, we will quote from them extensively:

During 1995 negotiations for a new collective bargaining agreement, the Union successfully negotiated a health insurance provision that locked in the subsidy in effect at the time of retirement until the retiree reached age 65. Moreover, the parties agreed to apply that benefit retroactively to officers who retired between February 1, 1992 and July 1, 1995, the effective date of the new Memorandum of Agreement (hereinafter “MOU”). Section 7.13 of the MOU stated, in relevant part:

Section 7.13: Retiree Health Insurance —The County shall provide the same health insurance benefits (programs and contributions) for retirees under the age of sixty-five (65) as it does for active employees, at the time the employees retires (sic). The health insurance subsidy at the time of retirement will remain in effect until the retiree or the retiree's surviving beneficiary reaches age sixty-five (65).

Effective July 1, 1995, retirees who retired on or after February 1, 1992 shall receive the County contribution for health insurance as set forth above.[FN 3 OMITTED]

As structured, this language had a two-fold impact. The first paragraph provided the “lock” for the subsidy in effect at the time of an officer's retirement. The second paragraph ensured that officers who retired between February 1, 1992 and July 1, 1995 would receive the same guarantee with respect to the rate existing at their times of retirement. The language remained in subsequent MOUs until 2003–2004. [FN 4 OMITTED] The sole change at that time, however, related to removal of the sentence providing that “Effective July 1, 1995, retirees who retired on or after February 1, 1992 shall receive the County contribution for health insurance as set forth above.” (The parties did not then see that as a substantive change and do not claim here that it has any impact on the current dispute.) The critical lock-in language—“The health insurance subsidy in place at the time of retirement shall remain in effect until the retiree becomes eligible for Medicare” remained unchanged in the MOUs effective in 2004–2005, 200[ ]5–2006 and 2006–2007. [FN 5: “During those periods of time, the contribution split remained at 85/15.”]

The dispute in this case centers on changes applicable to the July 1, 2007–June 30, 2008 MOU. In negotiations preceding the agreement, the County proposed the following language:

E. Retiree Health Insurance. The County shall provide the same health insurance benefit plans offered to active employees for retirees not eligible for Medicare who attain sufficient creditable service for a retirement within their bargaining unit, or retirees who qualify for disability retirement. The County will contribute toward the premium for available benefit plans in accordance with the Administrative Officer's Policy, on Insurance Benefits for Baltimore County retirees. Employees who retire from county service shall have the subsidy provided for in Exhibit (I). [FN 6 OMITTED]

For all negotiations after 1995, the FOP, and other County unions, as well as a non-Union employee group, were represented (for health care issues) by a group known as the Health[care] Review Committee (“HRC”). [FN 7 OMITTED] That Committee initially objected to the County's proposed revised language, specifically the removal of the “lock-in” terms. [FN 8 OMITTED] Nevertheless, the HRC agreed to the modified health insurance package. Ultimately, the final proposal from the County on retiree health insurance read as follows:

E. Retire[e] Health Insurance

“The County shall provide the same health insurance benefit plans offered to active employees for retirees not eligible for Medicare who attain sufficient creditable service for a retirement within their bargaining unit, or retirees who qualify for disability retirement: Individuals who retired prior to

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