Balt. Cnty. v. Balt. Cnty. Fraternal Order of Police Lodge No. 4, 96

• Court: Court of Special Appeals of Maryland
• Parties: BALTIMORE COUNTY, MARYLAND, et al. v. BALTIMORE COUNTY FRATERNAL ORDER OF POLICE LODGE NO. 4
• Docket Number: No. 96,96
• Decision Date: 29 July 2014

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

No. 96

COURT OF APPEALS OF MARYLAND

Argued: June 4, 2014
September Term, 2013
July 29, 2014

Local Government—Collective Bargaining—Statutory Interpretation Under Baltimore County Code § 4-5-201(a)(2) of the Employee Relations Act, the Fraternal Order of Police, Lodge No. 4 (FOP), may file an unfair labor practice complaint only with an agency selected by the County's Director of Human Resources. The provision does not require necessarily that the duty of designating a third-party agency is ministerial, and it does not rule out the possibility of the Director having some discretion in determining when or under what circumstances he or she designates a third party.

Labor and Employment—Collective Bargaining—Writ of Mandamus Where the obligation to perform some particular duty is unclear or involves the exercise of any "vestige of discretion," or where the party seeking enforcement of the alleged duty does not have a clear right to the performance of the duty it seeks to compel, the remedy of a writ of mandamus should not be granted. Because we conclude that the Employee Relations Act does not mandate that the Director designate a third-party agency invariably when the FOP files a complaint, we hold that the grant of a writ of mandamus here was improper.

Page 2

Circuit Court for Baltimore County
Case No. 03-C-11-010608

Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.

Opinion by Harrell, J.
Watts, J., joins judgment only.
McDonald, J., Dissents.

Page 3

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 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.

Page 4

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 grievances^[2] 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 understanding³ of 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).

Page 5

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 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

Page 6

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

Page 7

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 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 US 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 US

Page 8

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...