Montgomery County Council of Supporting Services Emp., Inc. v. Board of Ed. of Montgomery County

• Decision Date: 07 April 1976
• Docket Number: No. 120,120
• Citation: 277 Md. 343,354 A.2d 781
• Parties: , 92 L.R.R.M. (BNA) 2529, 80 Lab.Cas. P 54,106 MONTGOMERY COUNTY COUNCIL OF SUPPORTING SERVICES EMPLOYEES, INC. v. BOARD OF EDUCATION OF MONTGOMERY COUNTY et al.
• Court: Maryland Court of Appeals

Page 343

277 Md. 343

354 A.2d 781, 92 L.R.R.M. (BNA) 2529,

80 Lab.Cas. P 54,106

MONTGOMERY COUNTY COUNCIL OF SUPPORTING SERVICES EMPLOYEES, INC. v. BOARD OF EDUCATION OF MONTGOMERY COUNTY et al.

No. 120.

Court of Appeals of Maryland.

April 7, 1976.

Marvin E. Preis, Silver Spring, and Thomas P. Powers, Washington, D. C. (Steven M. Cooper and Douglas J. Adams, Silver Spring, on the brief), for appellant.

Robert S. Bourbon, Rockville, for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, ^* JJ.

LEVINE, Judge.

This is an appeal from an order of the Circuit Court for Montgomery County dismissing a petition for injunctive relief filed by appellant, the Montgomery County Council of Supporting Services Employees, Inc. (MCCSSE), bargaining agent for the noncertificated employees of the Board of Education of Montgomery County (the School Board), appellee herein. In its bill of complaint, MCCSSE sought to enforce the terms of a collective bargaining agreement between it and the School Board. See Western Md. Dairy v. Chenowith, 180 Md. 236, 23 A.2d 660 (1942). Additionally, MCCSSE sought to enjoin the disbursement of funds for increases in pay under a plan adopted by the School Board. MCCSSE alleged a failure of the School Board to engage with it in good faith negotiations respecting the allocation of funds appropriated by the Montgomery County Council for cost-of-living increases in wages and salaries, in violation of the collective bargaining agreement and Maryland Code (1957, 1975 Repl.Vol.) Art. 77, § 160A(j). The circuit court (Mitchell, J.) found that the School Board had negotiated in good faith with MCCSSE and therefore denied the requested relief. An appeal to the Court of Special Appeals followed, but we granted a writ of certiorari prior to consideration by that court. Because we find sufficient evidence in the record to support the conclusion of the circuit court, we shall affirm.

The employees of the School Board are represented by two unions. The teachers and administrative staff are represented by the Montgomery County Education Association (MCEA) and the supporting services personnell are represented by MCCSSE. In 1974 MCCSSE, as bargaining agent for the supporting services personnel, entered into a collective bargaining agreement with the School Board. The term of the agreement being two years, there was included a cost-of-living escalator clause to be applied to rates of pay in the second year. The escalator clause called for a percentage annual increase in the various pay schedules based on a formula taking into account changes in the consumer price index. An identical clause was also made part of the agreement between the School Board and MCEA, apparently as a result of an arbitration decision providing that a percentage increase, as opposed to an increase in a flat dollar amount, should be applied to all employees of the School Board. The application of the formula, all parties agree, would have produced a 10.1% increase in the salary schedules beginning July 1, 1975.

This case was precipitated by the failure of the Montgomery County Council (the Council) to appropriate the amount necessary to fund the full 10.1% increase. Although the School Board sought full funding in its budget request, after numerous meetings the Council settled on a lesser sum. By Resolution No. 8-218, the Council appropriated an amount for a cost-of-living adjustment equal 'to $750 per man-year in the various (county) budgets . . . the distribution of this cost of living allowance to be determined by the agencies according to their procedures.' The term 'manyear' is a term of art meaning, with respect to the Board of Education, a full-time position of employment. The amount requested by the School Board for full funding of the 10.1% increase for all of its employees was approximately $19.6 million. The total amount actually appropriated by the Council, determined by multiplying $750 by the number of full-time positions with the School Board, was about $9.1 million. The School Board, pursuant to the authority vested in it by Resolution No. 8-218 to determine the distribution of the amount appropriated and by Art. 77, § 160A(l) to render the final determination as to matters subject to negotition, after several negotiating sessions with MCCSSE, granted a 5.46% increase in all of its salary schedules, thus using the entire amount appropriated for that purpose. MCCSSE then instituted this action.

The authority of the Council to appropriate any amount which in the exercise of its discretion it deems proper, including an amount insufficient to fund contractual pay increases, is unquestioned. Indeed, this contingency is anticipated in § 160A of Article 77, which provides:

'(j) Funding negotiated agreements . . . If the fiscal authority does not approve sufficient funds to implement the negotiated agreement, the public school employer is required to renegotiate the funds allocated for such purposes by the fiscal authority with the employee organization prior to making a final determination . . ..'

To the same effect, Article V, § 13 of the collective bargaining agreement provides:

If the Montgomery County Council, in the new exercise of its fiscal authority under the law, reduces the budget recommendations of the Board of Education, and such action makes it necessary for the Board to reduce one or more items that have been negotiated, such items and all other negotiated itemsthat are dependent upon budget funding shall be subject to renegotiation. . . .'

First, MCCSSE argues on appeal that its members are entitled, at a minimum, to the equivalent of $750 per employee. It contends that wages and salaries for supporting services personnel constitute a separate budget category for purposes of legislative funding, and that the effect of Resolution No. 8-218 was to appropriate to the supporting services 'category' an amount equal to $750 times the number of supporting services positions, about.$3.6 million. Because the supporting services employees earn on the average an amount somewhat less than that earned by the professional employees, only about.$2.5 million would be distributed in the form of pay increases to supporting services personnel under the 5.46% plan adopted by the School Board. Allocation to supporting services wages and salaries of the.$3.6 million sought by the MCCSSE would result in an average increase of 7.9% in the supporting services schedules, and an increase for professional employees averaging somewhat less than the 5.46% which, under the School Board plan, all employees would receive.

There is no merit in the argument of MCCSSE. Section 117(e) of the Article 77 provides in part that '(a)ll revenues received by each county board of education shall be expended by them in accordance with the major categories of its annual budget as provided for by this section.' There is in § 117, however, no category for wages and salaries of supporting services personnel. Rather, supporting services positions are provided for in several of the major budget categories. Indeed, a great number of those positions is included in Category 2, 'Instructional salaries,' which also includes the bulk of the professional positions. Section 117(e) specifically provides that funds may be freely transferred within the major categories by the boards of education.

Moreover, § 117(e) further provides that trasfers between major categories may be made 'with the approval of the . . . county council.' The Council, in its Resolution No. 8-218, allowed 'the distribution of this cost of living allowance to be determined by the agencies.' Thus, the necessary authority for intercategory transfer of funds was provided in the funding resolution itself.

MCCSSE next contends that the School Board violated § 160A(j) of Art. 77 and Article V, § 13 of the collective bargaining agreement by refusing to negotiate in fact over the distribution of the funds appropriated. The basis for this contention is the refusal of the School Board to accept the position taken by MCCSSE that negotiation must start with the $750-per-employee figure. As discussed above, however, the School Board was under no obligation to begin negotiations at that or any other figure. Therefore, its refusal to accept the $750 figure as a minimum did not constitute a refusal in fact to negotiate.

But the thrust of the MCCSSE argument is that the School Board refused to negotiate in good faith. Subsection h of § 160A specifically provides that with respect to negotiations relating to salaries, wages, hours and working conditions, the term 'negotiate' includes the duty to confer in good faith. Likewise, the duty to confer in good faith may also be fairly implied with respect to the contractual obligation, contained in Article V, § 13 of the collective bargaining agreement, to renegotiate items subject to reduced funding. The federal cases applying §§ 8(a)(5) and 8(b)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (b)(3), are particularly instructive in this regard, though their lesson must be termpered with a recognition of the fact that those decisions were reached in the posture of review of administrative rulings. ¹

The requirement of good faith is a subjective measure which can be applied only in light of the totality of the circumstances. It is not required that the parties reach agreement; nor is it even necessary that concessions be made. National Labor Relations Board v. Jones & Laughlin, 301 U.S. 1, 45, 57 S.Ct. 615, 81 L.Ed. 893 (1937); National Labor Relations Bd. v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1st Cir.), cert denied, 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391 (1953); National Labor Rel. Board v. Montgomery Ward & Co., 133 F.2d 676, 687 (9th Cir. 1943). Somewhat paradoxically, perhaps, the cases suggest that a 'desire to reach agreement' constitutes good faith bargaining, and conversely...