Balt. Cnty. v. Balt. Cnty. Fraternal Order of Police Lodge No. 4.

Citation439 Md. 547,96 A.3d 742
Decision Date29 July 2014
Docket NumberSept. Term, 2013.,No. 96,96
CourtCourt of Appeals of Maryland

439 Md. 547
96 A.3d 742

BALTIMORE COUNTY, Maryland, et al.

No. 96, Sept. Term, 2013.

Court of Appeals of Maryland.

July 29, 2014.

[96 A.3d 744]

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

Matthew Clash–Drexler (Bredhoff & Kaiser, P.L.L.C., Washington, DC), on brief, for Respondent.



At the heart of this dispute is § 4–5–204(a)(1)(i) of the Employee Relations Act (the “Act”) of the Baltimore County Code (“BCC”), which states, in pertinent part, that either party subject to the Act “may file a verified complaint with an independent third party agency designated by the [County's] Director of Human Resources that the other party has committed an unfair labor practice.” The central question is whether the County's Director of Human Resources (the “Director”) had an imperative and ministerial duty to designate an independent third party agency when the Fraternal Order of Police, Lodge No. 4 (the “FOP”), the bargaining agent for covered Baltimore County police employees, submitted to him an “unfair labor

[96 A.3d 745]

practice” complaint grounded on a unilateral change made by the County to a policy included in the County's “Personnel Manual” 1—but which was not part of the relevant memorandum of understanding (“MOU”) between the County and the FOP and was, at least ostensibly, not subject to collective bargaining negotiation. The Circuit Court for Baltimore County granted a writ of mandamus compelling the Director to designate an independent third party agency to consider the FOP's unfair labor practice complaint. Because we conclude that neither the phrase “designated by the Director of Human Resources” in BCC § 4–5–204(a)(1)(i), nor any other provision in the Act, imposed an undisputable, non-discretionary duty on the Director to refer every unfair labor practice complaint to an independent third party agency, we reverse the judgment of the Circuit Court.

I. Background.
a. The Employee Relations Act and the Attendance Recognition Program.

In order “to promote the improvement of employer-employee relations within the various agencies of the county government,” see BCC § 4–5–201(a)(1), the Act sets out “a uniform basis for recognizing the right of employees of the classified service of the county to” join or refrain from joining an employee organization and to “[b]e represented by the employee organizations in their employment relations and dealings with the county administration.” BCC § 4–5–201(a)(1). Specifically, the purpose of the Act is

to establish procedures by which the county administration or its designated representatives may negotiate in good faith with an exclusive representative with affirmative willingness to resolve grievances2 and disputes relating to wages, hours, and other terms and conditions of employment, as defined in this act, and to finalize in writing a memorandum of understanding3of matters agreed on, acting within the framework of fiscal procedures, laws, rules, and regulations, and Charter provisions of the county and the constitution and laws of the state.

BCC § 4–5–201(a)(2) (emphasis added).

The Act prohibits the County and employee organizations from engaging in certain conduct labeled “unfair labor practices.” BCC § 4–5–203. “Unfair labor practices” is not defined precisely, but BCC § 4–5–203 enumerates five categories of prohibited conduct, one of which is to “[r]efuse to negotiate in good faith with an exclusive representative.” BCC § 4–5–203(a)(4). The next section, BCC § 4–5–204, establishes the process through which either the County or an employee organization

[96 A.3d 746]

may file an unfair labor practice complaint. Under BCC § 4–5–204(a)(1)(i), “[t]he county administration or an employee organization may file a verified complaint with an independent third party agency designated by the Director of Human Resources that the other party has committed an unfair labor practice.” The only requirement for the content of a complaint is that it “shall include a detailed statement of the alleged unfair labor practice.” BCC § 4–5–204(a)(1)(ii). Once the complaint is filed with the designated independent third party agency, the agency may “[i]ssue an order dismissing the complaint,” “[o]rder a further investigation,” or “[o]rder a hearing on the complaint at a designated time and place.” BCC § 4–5–204(b).

The Act discusses negotiations in general under BCC § 4–5–310, and requires “[t]he county administration and the exclusive representatives” to “[n]egotiate in good faith with respect to: (i) [w]ages, hours, and terms and conditions of employment; and (ii) [t]he drafting of a written memorandum of understanding containing all matters agreed upon, signed by authorized representatives of both parties.” BCC § 4–5–310(a)(2). BCC § 4–5–310(b) establishes that the parties' “obligation to negotiate in good faith: (1) [r]equires that a good faith effort be made by both parties to arrive at an agreement and to reduce the agreement to writing within a reasonable period of time; but (2) [d]oes not require that any concessions be made by either party.”

The Act explains further the “County Rights and Responsibilities,” stating that

it is the exclusive right of the [C]ounty to: (1) [d]etermine the purposes and objectives of each of its constituent offices and departments; (2) [s]et standards of services to be offered to the public; (3) [e]xercise control and discretion over its organization and operations; and (4) [d]etermine the methods, means, personnel, and other resources by which the county's operations are to be conducted, including: (i) [t]he use of volunteers; and (ii) [t]he contracting out of work if considered necessary.

BCC § 4–5–202(a).

Under BCC § 4–5–202(b), and “[s]ubject to applicable provisions of a memorandum of understanding ..., the county may: (1) [d]irect its employees; (2) [h]ire, promote, transfer, assign, or retain employees; (3) [e]stablish reasonable work rules; and (4) [d]emote, suspend, discharge, or take any other disciplinary action against its employees for just cause.” Finally, in reference to “grievance rights,” the Act adds that “[n]othing in this section may be construed to deny the right of an employee to submit a grievance with regard to the county's exercise of its rights under this section.” BCC § 4–5–202(d).

This case involves the putative intersection of the Act and the County's Attendance Recognition Program, which is set forth in the County's Policies and Procedures Manual. The Act does not mention either the County's Policies and Procedures Manual or its Attendance Recognition Program.4 Section 1 of the Policies and Procedures Manual, “Code of Conduct and Policies,” however, is preceded by the following disclaimer:

This manual was published to aid employees and supervisors in understanding various policies, personnel rules, regulations and procedures. It does not

[96 A.3d 747]

constitute an express or implied contract and is not intended to create any rights, contractual or otherwise not set forth in the Baltimore County Code. The County has the right to modify or discontinue any policy referenced in this manual at any time without prior written notification.
(Emphasis in original.)

b. The Dispute Commences.

The County instituted unilaterally the across-the-board “Attendance Recognition Program,” as part of the “Absence Control Policy” in the County's Policies and Procedures Manual, “[i]n an effort to encourage good attendance and recognize those employees who consistently maintain regular attendance.” Under the 2010 initial version of the Attendance Recognition Program, “[a]ny employee completing one calendar year of employment without using any sick leave will receive funds to purchase a $100 U.S. Savings Bond, and a letter of congratulations from the County Executive.” On 24 June 2011, the County alerted the FOP that it intended to amend the Attendance Recognition Program by discontinuing, starting in FY 2011, the “funds to purchase a $100 U.S. Savings Bond,” but leaving the letter of congratulations recognition in place (woo hoo!).5 The County's rationale was explained in detail in a subsequent broadcast email 6 as follows:

In a further effort to reduce costs, the County will discontinue the monetary award for the Attendance Recognition Program for employees who have not used sick leave during the calendar year. The County initiated this award to improve available productive time. It has been only modestly successful in that regard and employees already have the incentive of utilizing accrued sick leave as creditable service toward retirement.

The FOP responded to the County's announced intention to limit the Attendance Recognition Program in a letter dated 30 June 2011 to George Gay, the Director of Human Resources, requesting to bargain over the County's decision to discontinue the savings bond portion of the Attendance Recognition Program. In a letter dated 9 August 2011, the Director informed the FOP that the County declined its request to bargain because: (1) the Attendance Recognition Program was not included in a memorandum of understanding; (2) the County considered the program a management prerogative; and (3) “by its own terms, the Personnel Manual [was] meant to be a non-negotiable management tool....” On 13 September 2011, the FOP submitted to the Director an “unfair labor practice complaint,” alleging that “[t]he decision of Baltimore County to discontinue the dollar award for the purchase of a savings bond for the calendar year 2011 as stated in the Absence Control Policy” and the County's subsequent refusal to bargain over the change constituted “an unfair labor practice under BCC §§ 4–5–203(a)(1) and (4) of the [BCC].” 7

The Director acknowledged receipt of the FOP's unfair labor practice complaint

[96 A.3d 748]


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