Montgomery Cnty. v. Fraternal Order of Police, Montgomery Cnty. Lodge 35, Inc.

• Decision Date: 20 August 2012
• Docket Number: No. 105,Sept. Term, 2011.,105
• Parties: MONTGOMERY COUNTY, MARYLAND v. FRATERNAL ORDER OF POLICE, MONTGOMERY COUNTY LODGE 35, INC.
• Court: Maryland Court of Appeals

427 Md. 561

50 A.3d 579

MONTGOMERY COUNTY, MARYLAND

v.FRATERNAL ORDER OF POLICE, MONTGOMERY COUNTY LODGE 35, INC.

No. 105, Sept. Term, 2011.

Court of Appeals of Maryland.

Aug. 20, 2012.

Edward B. Lattner, Chief, Division of Human Resources & Appeals (Marc P. Hansen, Co. Atty., Rockville, MD), on brief, for Appellant.

Abigail V. Carter (Jeffrey L. Gibbs and Kimberly M. Sanchez Ocasio, Bredhoff & Kaiser, P.L.L.C., Washington, D.C.), on brief, for Appellee.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.

GREENE, J.

The Fraternal Order of Police, Montgomery County Lodge 35, Inc. (“FOP” or “Appellee”) filed a grievance under the “Maintenance of Standards” provision of its collective bargaining agreement (“CBA” or “ Agreement”) with Montgomery County (“County” or “Appellant”) following the County's unilateral decision to discontinue a long-standing practice of allowing shop stewards to sit in on disciplinaryinterrogations for training purposes. The County filed a motion to dismiss the grievance, arguing that arbitration of the issue was preempted by the Law Enforcement Officers' Bill of Rights, Maryland Code (2003, 2011 Repl.Vol.), §§ 3–101–113 of the Public Safety Article (“LEOBR”). ¹ The arbitrator determined that the grievance was not preempted and denied the motion to dismiss. The County then filed a petition to vacate the “arbitration award” in the Circuit Court for Montgomery County. The Circuit Court affirmed the arbitrator's decision and granted summary judgment on behalf of the FOP. We affirm the judgment of the Circuit Court that the LEOBR is not implicated by the steward training grievance and, therefore, does not preempt its arbitration under the CBA.

I.

On August 11, 2009, the FOP ² filed a grievance with an arbitrator pursuant to its CBA with the County, alleging that the County violated the Agreement when it unilaterally terminated a 20–year old practice of allowing shop stewards in-training to attend disciplinary interrogations conducted by the Police Department's Internal Affairs Division.³ The CBA provides for dispute resolution, including the arbitration of grievances, and defines a grievance as “a dispute or disagreement as to the interpretation or application of the terms and conditions of [the] Agreement.” While the Agreement does not expressly mention the training of shop stewards, the FOP argued that the previous policy amounted to a “past practice” and was thereby incorporated into the Agreement and preserved under the “Maintenance of Standards/Retention of Benefits and Conditions” provision. The County filed a motion to dismiss the grievance, arguing that the LEOBR governs the presence of individuals during an interrogation and that, save for two exceptions,⁴ the statute preempts collective bargaining and arbitration on matters relating to the “ subject and material” of the LEOBR. See§ 3–102(b) of the Public Safety Article. The County argued that the proper procedure for asserting the denial of an officer's rights under the LEOBR was an application for a show cause order in the circuit court. See§ 3–105 of the Public Safety Article. The FOP filed in opposition and argued that the grievance had “nothing to do with the LEOBR” because the issue involved the union's right to train its employees and did “not deal with the procedural guarantees regarding the right of a police officer to representation at an interrogation.” The arbitrator agreed with the FOP and ruled that the grievance was not preempted, stating:

[T]he grievance is not barred by the specific provisions of the LEOBR, and shall not be dismissed. The subject matter of the grievance goes to a practice affecting the rights of the FOP and its stewards; and not to the discipline of a law enforcement officer, procedural safeguard for that officer, or the procedures of a hearing board under the LEOBR.

The arbitrator made clear that he had only determined whether the grievance was preempted or otherwise barred by the LEOBR and did not reach the question of arbitrability or the merits of “whether there is a practice that binds the County.” On September 20, 2010, the County filed, in the Circuit Court for Montgomery County, a “Petition to Vacate Arbitration Award” pursuant to the Maryland Uniform Arbitration Act.⁵SeeMd.Code (1973, 2006 Repl. Vol.) § 3– 224 of the Courts and Judicial Proceedings Article. In its petition, the County argued that the “award” should be vacated because the LEOBR preempted collective bargaining and arbitration of the issue, and therefore the arbitrator exceeded his powers in asserting jurisdiction over the underlying dispute. See § 3–224(b)(3) of the Public Safety Article (“The court shall vacate an award if ... (3) The arbitrators exceeded their powers [.]”). The FOP filed a motion for summary judgment, arguing that the arbitrator's decision should be confirmed. The County filed a cross-motion for summary judgment. Following a hearing, the Circuit Court judge granted the FOP's motion for summary judgment and denied the County's cross-motion, ruling:

[T]his really doesn't have anything to do with the rights of a police officer subject to possible discipline. It does have everything to do with [the] training of union employees.... I think that it promotes the implementation of [the] LEOBR.... It's not contradictory to it, nor is it preempted by [the] LEOBR.... This is really just whether or not somebody who is present here to train as a future participant in the proceeding is precluded from doing so simply because of the existence of an exclusive statutory disciplinary scheme which is set up under [the] LEOBR. And I just don't think that that contradicts [the] LEOBR in any way. I think it's consistent with it, its consonant with it, if anything.... I believe that the arbitrator has the ability to, without contradicting [the] LEOBR, and without being in violation of the collective bargaining agreement, to consider the arbitrability of this issue.

The County then noted an appeal to the Court of Special Appeals. Prior to any proceedings in the intermediate appellate court, we issued a writ of certiorari, on our initiative. Montgomery Cnty. v. Fraternal Order of Police Lodge 35, 424 Md. 291, 35 A.3d 488 (2012). We now address the following question:

Does the express preemption provision of the LEOBR preclude arbitration of [the] FOP's grievance regarding the number of representatives it may have present during the disciplinary interrogation of a police officer?

We answer that question in the negative, and therefore affirm the judgment of the Circuit Court. The LEOBR is not implicated under the facts and does not preempt arbitration of the underlying dispute.⁶

II.

Preliminarily, we take this opportunity to clarify the procedural issue raised by the trial judge when, in confirming the determination of the arbitrator, he noted confusion as to whether a petition to “vacate” was the “correct terminology,” under the circumstances. Indeed, by filing a petition to vacate the “arbitration award,” the County suggested that an award was, in fact, made by the arbitrator. It used language throughout the petition that referred to the arbitrator's denial of its dispositive motion as an “award,” despite its preliminary nature and the fact that arbitration on the merits had not taken place.

Appellant apparently relied on Montgomery County v. Fraternal Order of Police Montgomery County Lodge 35, Inc., 147 Md.App. 659, 810 A.2d 519 (2002) ( “Lodge 35 ”) as the blueprint for pursuing this procedural error. In that case the FOP requested arbitration, and the County, rather than petitioning the circuit court for a stay of arbitration, filed a motion to dismiss before the arbitrator, arguing that the particular dispute was not arbitrable. After the arbitrator denied the motion to dismiss, the County filed a “petition to vacate arbitration award” in the circuit court. The circuit court affirmed the determination of arbitrability, which was then appealed. On appeal, the intermediate appellate court stated that although the arbitrator issued a preliminary decision rather than a final award, “[n]evertheless, the parties have not argued that an arbitrator has to render a final award before a petition to vacate a preliminary decision can be filed, and we are not aware of any authority compelling that conclusion.” Lodge 35, 147 Md.App. at 666, 810 A.2d at 523. The intermediateappellate court then continued to evaluate whether the arbitrator exceeded his powers and whether the “award” should be “vacated” under the Arbitration Act, Maryland Code § 3–224 of the Courts and Judicial Proceedings Article.

The reasoning of the intermediate appellate court in Lodge 35 is incorrect because it is clear, pursuant to our case law, that a petition to vacate an arbitration award requires an actual award, i.e., a final decision by an arbitrator on the merits. See Messersmith, Inc. v. Barclay Townhouse, 313 Md. 652, 663, 547 A.2d 1048, 1053 (1988) (noting that Md.Code § 3–208 and § 3–224 of the Courts and Judicial Proceedings Article are “mechanisms though which a court (based upon its independent assessment of the evidence thereby concluding that no agreement to arbitrate exists) is authorized to either stay an arbitration proceeding, under § 3–208, or invalidate it after the fact, under § 3–224(b)(5).” (emphasis added)); Brewster v. Woodhaven Bldg. & Dev., Inc., 360 Md. 602, 620, 759 A.2d 738, 753–54 (2000) (noting that § 3–224 is one of three sections of the Arbitration Act which “permit parties who have been through arbitration to file certain post-award petitions in the Circuit Court ...” (Wilner, J., dissenting on other grounds)); Stauffer Constr. Co. v. Bd. of Educ., 54 Md.App. 658, 664, 460 A.2d 609, 612 (1983) (“When such an [arbitration] agreement exists, or is alleged to exist, the courts are generally enjoined by the statute from interfering with the arbitration process. Indeed, the court's...