Mayor and City Council of Baltimore v. Baltimore Fire Fighters, Local 734, I.A.F.F.

• Decision Date: 01 September 1991
• Docket Number: Nos. 1952 and 1953,s. 1952 and 1953
• Citation: 613 A.2d 1023,93 Md.App. 604
• Parties: , 142 L.R.R.M. (BNA) 2098 MAYOR AND CITY COUNCIL of BALTIMORE v. BALTIMORE FIRE FIGHTERS, LOCAL 734, I.A.F.F. et al. MAYOR AND CITY COUNCIL of BALTIMORE v. BALTIMORE FIRE FIGHTERS, LOCAL 734, I.A.F.F. et al. ,
• Court: Court of Special Appeals of Maryland

Page 604

93 Md.App. 604

613 A.2d 1023, 142 L.R.R.M. (BNA) 2098

MAYOR AND CITY COUNCIL of BALTIMORE v. BALTIMORE FIRE FIGHTERS, LOCAL 734, I.A.F.F. et al.

MAYOR AND CITY COUNCIL of BALTIMORE v. BALTIMORE FIRE FIGHTERS, LOCAL 734, I.A.F.F. et al.

Nos. 1952 and 1953, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Oct. 6, 1992.

James S. Ruckle, Jr. and Laurice D. Royal, Asst. Solicitors (Neal M. Janey, City Sol., on the brief), Baltimore, for appellants.

Joel A. Smith (Abato, Rubinstein, Abato & Smith, P.A., Lutherville, Andrew H. Kahn and Kahn, Smith & Collins, P.A., Baltimore, on the brief), for appellees.

Argued before MOYLAN, ALPERT and MOTZ, JJ.

MOTZ, Judge.

In each of these consolidated actions, appellees, Baltimore Fire Fighters, Local 734, and Baltimore Fire Officers, Local 964 ("the Unions"), sought a declaratory judgment and injunction to compel appellants, Mayor and City Council of Baltimore ("the City"), to arbitrate a dispute between the parties. One case involves a dispute as to reduction in staffing levels on fire engines (the "staffing" case), and the other involves employees' right to use accrued vacation leave prior to retirement (the "accrued leave" case). Because both disputes are grievances and neither is so intimately involved in management prerogatives as to render it nonnegotiable, we affirm the grant of summary judgment by the Circuit Court for Baltimore City (Byrnes, J.). (i)

The staffing case arises from a June 1, 1990 decision by the Board of Fire Commissioners ("Fire Board") to reduce the engine company crews from four to three members. The crew size reduction was precipitated by a work week reduction and a financial crisis. In 1988, the Unions and City agreed, in two Memoranda of Understanding ("MOU") covering fiscal years 1991 and 1992, to reduce the hours worked per week by union members from 47 hours per week to 44.4 or 44.8 hours per week. At the time of this agreement, the City and the Unions anticipated that this new work week would be implemented by the hiring of new employees. The City estimated that it would need 137 more firefighters after the work week reduction; the Unions estimated 120 more would be necessary. When this agreement was made in 1988 the City indicated that it would be unable to implement the work week reduction until June 1, 1990. One union agreed to this timetable; the other submitted it to arbitration, and the arbitrator ruled in the City's favor, stating that he "was strongly influenced by" the City's assurances "that there is no question of its intent to abide in full" with the terms of the agreement. On June 1, 1990, however, the Fire Board determined that because of a fiscal crisis (the Fire Department's overtime expenses were approaching a one million dollar deficit), it would implement the work week reduction by reducing from four to three the number of firefighters assigned to each engine, rather than by hiring more firefighters. On June 3, 1990, the Unions filed grievances alleging that the staffing reduction violated the Fire Department's Manual of Procedure, the Municipal Employee Relations Ordinance of Baltimore City, and the MOU. The Labor Commissioner of Baltimore City determined that the staffing dispute was "non-grievable" and refused to submit it to arbitration. The Unions then filed suit for a declaratory judgment and injunctive relief seeking to require the City to arbitrate the dispute. The City answered the complaint, and both parties moved for summary judgment.

Meanwhile, the City and Unions became embroiled in a dispute involving accrued vacation leave. For 25 years the accepted practice was to allow Fire Department employees to use accrued vacation leave just prior to their retirement. During negotiations of the MOU governing fiscal years 1991 and 1992, the City had proposed that employees be allowed to so use "only one year accumulated vacation in combination with 90 days [terminal] leave; proper payment will be made for all other accumulated vacation [leave]." This proposal was rejected by the Unions. On January 28, 1991, an employee filed a notice of retirement and requested 166 work days of accumulated vacation leave in accordance with past practice; this request was denied. A grievance was filed alleging that this action violated the Fire Department's Manual of Procedure and the MOU. On April 5, 1991, the Labor Commissioner was notified of the Union request for arbitration; on May 10, 1991, the Labor Commissioner determined that the issue was "non-arbitrable." (The specific dates given apply to Local 734; on different dates, Local 964 followed a virtually identical chronology and process on behalf of two of its members.) On June 11, 1991, the Unions then filed suit for declaratory and injunctive relief seeking to have the City ordered to arbitrate the accrued leave issue. The Unions' complaint was accompanied by a motion for summary judgment; the City answered and filed a cross-motion for summary judgment.

On August 7, 1991, the Unions moved to consolidate the staffing case and accrued leave case. That unopposed motion was granted. After hearing argument, the circuit court issued a comprehensive twenty-seven page opinion and order granting the Unions' motions for summary judgment. The circuit court found that both disputes were "grievable as a matter of law" and should be submitted to arbitration. The circuit court, however, concluded that the arbitrator was not free in the staffing case to order, "as an arbitrated remedy a return to the four person staffing level without the express consent of the Mayor and City council" the Unions do not appeal this limitation on the arbitrator's power. ¹

The City does appeal the grant of summary judgment to the Unions, asserting that:

1. Neither dispute is a "grievance" as that term is defined in the MOU, the negotiated agreements between the parties; and

2. Even if the disputes are grievances, as defined in the MOU, they involve "management rights" which "may not be divested absent statutory authority" and there is no such authority here. ²

(ii)

In the MOU, a multi-stage grievance and arbitration procedure is specified; the parties agree to submit to an arbitrator "grievances" not satisfactorily resolved at earlier stages. "Grievance" is defined in the governing MOU and in the Municipal Employee Relations Ordinance, Baltimore City, Md.Code, art. 1, § 120(f) (1983) (hereinafter "Baltimore City Code") as:

(1) a dispute concerning the application or interpretation of the terms of a memorandum of understanding, [or]

(2) a claimed violation, misinterpretation or misapplication of the rules or regulations of a municipal agency or the employer affecting the terms and conditions of employment.

The City's initial argument is that neither dispute at issue here fits "within [this] definition of 'grievance' "; the Unions assert that both disputes are grievances as defined in the MOU.

Where, as here, the parties are "in disagreement on the very question whether there exists an agreement to arbitrate the subject matter of the dispute," the resolution of that question is for the court. Messersmith, Inc. v. Barclay Townhouse Assoc., 313 Md. 652, 661, 547 A.2d 1048 (1988) (quoting with approval Mayor & City Council of Baltimore v. Baltimore Fire Fighters, Local 734, 49 Md.App. 60, 65-66, 430 A.2d 99, cert. denied, 291 Md. 771 (1981)). See also United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 567-78, 80 S.Ct. 1343, 1346-47, 4 L.Ed.2d 1403 (1960). Although unacknowledged by any party, the definition of grievance in the MOU at issue here is "not ... 'extremely broad' but is limited by the terms of" the MOU and "the rules and regulations of the employer." Mayor & City Council of Baltimore v. Fire Fighters, Local 734, supra, 49 Md.App. at 69, 430 A.2d 99 (interpreting identical language). Compare Gold Coast Mall v. Larmar Corp., 298 Md. 96, 104, 468 A.2d 91 (1983). On the other hand, as the City properly concedes, the Supreme Court has made it clear that arbitration is a favored remedy, and in reviewing any arbitration clause a court is to order arbitration unless "it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." AT & T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648 (1986). Doubts are to be "resolved in favor of coverage." Id. See Howard Co. Bd. of Educ. v. Howard Co. Educ. Ass'n, 61 Md.App. 631, 641, 487 A.2d 1220 (1985); Mayor & City Council of Baltimore v. Baltimore City Fire Fighters, 49 Md.App. at 66, 430 A.2d 99; Corvallis School Dist. v. Corvallis Educ. Ass'n, 35 Or.App. 531, 581 P.2d 972, 974 (1978); West Fargo Pub. School Dist. v. West Fargo Educ. Ass'n, 259 N.W.2d 612, 620 (N.D.1977); Iowa City Community School Dist. v. Iowa City. Educ. Ass'n, 343 N.W.2d 139, 141 (Iowa 1983).

With these principles in mind, we turn to determination of whether the disputes at issue here constitute "grievances" subject to arbitration under the MOU. The Unions assert that the staffing reduction dispute "concerns" an "application or interpretation," and indeed constitutes a violation of Article IX (Overtime) and Article XV (Safety and Health) of the MOU. ³ Article IX of the MOU provides in pertinent part:

The Employer shall not vary or rearrange work schedules to avoid the payment of overtime.

Article XV provides in pertinent part:

The Employer and the Union shall cooperate in the enforcement of safety. Should any employee feel that his work requires him to be in unsafe or unhealthy situations, the matter shall be considered by the Employer. If the matter is not adjusted satisfactorily, it may become the subject of a grievance and will be processed according to the grievance procedure.

The circuit court found, inter alia, that the staffing reduction might involve an application or interpretation of both of these clauses....