Prince George's County v. American Federation of State, County and Municipal Emp., Council 67

• Decision Date: 21 January 1981
• Docket Number: No. 56,56
• Citation: 424 A.2d 770,289 Md. 388
• Parties: PRINCE GEORGE'S COUNTY, Maryland v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 67.
• Court: Maryland Court of Appeals

Page 388

289 Md. 388

424 A.2d 770

PRINCE GEORGE'S COUNTY, Maryland v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 67.

No. 56.

Court of Appeals of Maryland.

Jan. 21, 1981.

Robert B. Ostrom, County Atty., Upper Marlboro (Michael O. Connaughton, Deputy County Atty., and Sherrie L. Krauser, Associate County Atty., Upper Marlboro, on the brief), for appellant.

Kenneth P. Niman, Baltimore (Herbert J. Belgrad, Harriet E. Cooperman and Kaplan, Heyman, Greenberg, Engelman & Belgrad, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

RODOWSKY, Judge.

Presented here is the narrow issue of whether the Prince George's County Public Employees Relations Board (PERB) exceeded its jurisdiction in a hearing on unfair labor practice charges by ordering Prince George's County, through its officers, formally to execute and promptly to transmit to the County Council a collective bargaining agreement which PERB found to have been agreed to by county and union negotiators and to have been approved by the County Executive. We find no jurisdictional defect.

The Charter of Prince George's County, Maryland, Article IX, § 908, grants to county employees the right to organize and bargain collectively. That charter section directs the County Council to provide by law a labor code which shall include, inter alia, "definitions of and remedies for unfair labor practices." Prince George's County Code (1979), subtitle 13A, §§ 13A-101 through 13A-116 comprise the Labor Code. ¹

In February 1979 five locals of the American Federation of State, County and Municipal Employees (AFSCME), which are members of Council 67, began contract negotiations with the County. Each local had an existing labor agreement which expired June 30, 1979. The objective of the multi-local bargaining was to establish a master agreement containing uniform provisions applicable to all bargaining units, with addenda relative to issues specific to each local. Chief negotiator for the union was Paul H. Manner, area representative for Prince George's County. The executive director of Maryland Council 67 was Ernest Crofoot. From about March 14, 1979, the chief negotiator for the County was Allen G. Siegel, a private attorney. He shared negotiating responsibilities with Joseph C. Fagan who in January of 1979 had become director of labor relations for the county. Throughout the relevant period the County Executive has been Lawrence J. Hogan, whose chief administrative officer has been Kenneth Duncan.

Section 102(g) of the Labor Code provides that the term "employer" means "the County Executive and any individual who represents him or acts in his interests in dealing with employees ... or any person acting as an agent of said governmental body." Under § 109(a) the "County Executive, or his designated authorized representative(s) shall represent the employer in collective bargaining ...." ² In the course of the bargaining, as an issue was resolved by the negotiators, the provision was reduced to writing and the negotiators signed it. Under the agreed bargaining ground rules such items were not open for later discussion except by mutual consent. No new contract was reach by the expiration date of the then contracts. Bargaining continued. Resort was had to federal mediators. The impasse procedures of the Labor Code were invoked. On December 20, 1979 the Impasse Panel certified pursuant to Labor Code, § 112(a)(2), that all appropriate impasse procedures had been exhausted. This is one of the steps preceding a strike. The parties did return to the bargaining table on February 13, 1980. By about 5:00 p. m. that day, the product of the session was reduced to a two-page, handwritten document (the "tentative agreement"). It was signed for the County by Mr. Siegel and for the union by Mr. Manner and another.

As a result of the rejection by the County Executive of the tentative agreement, the union on February 19, 1980 filed unfair labor practice charges with PERB against the County. These charges were heard by the chairman of the Unfair Labor Practice Panel on March 4, 5 and 6, 1980. The thrust of the County's defense was that its negotiators were not authorized finally to agree to the tentative agreement, that it was subject to final approval by the County Executive, and that he was therefore free to reject it. On March 19, 1980 the hearing officer rendered his findings of fact and conclusions of law in which he held the County to have committed a number of violations.

We now turn to the more significant fact findings of the hearing officer. ³

On February 12, 1980, Joseph C. Fagan ... had a "private" meeting with Paul H. Manner .... On that date the parties worked out a general outline of what both sides thought they could successfully agree to and although Fagan did not check with the County Executive he felt that what the union was willing to agree (to) was within the guidelines set by the County Executive ....

At 2:00 p. m. on February 13, 1980, both parties met, with their full negotiation teams in attendance .... Various proposals and counter-proposals were made, with the County team finally caucusing, as Fagan and Siegel said they were going to the "boss," and that they thought they could sell the entire package. Fagan testified that they tried unsuccessfully to reach the County Executive but nevertheless when the County Negotiators came back 25-30 minutes later, Siegel came in with a smile on his face, reached his hand out, said "We have an agreement," and shook Manner's hand. (Emphasis added.) (Thereupon the "tentative agreement" was signed.)

About 9:00 p. m. Fagan was advised by Kenneth Duncan ... that the County Executive would not agree to the Tentative Agreement. About 11:30 p. m. Siegel called Manner and indicated that "we have a problem," explaining that the County Executive was enraged over a newspaper article in The Washington Star that day, February 13, 1980, in which the Chairman of the County Council, a political rival, criticized the County Executive and which, in the view of the County Executive, made it appear that the settlement reached was forced by the County Council. To offset this impression, Siegel suggested that the parties meet with a Federal mediator and arrive at the same agreement already reached but which would be attributed to the efforts of the mediator, which would take the credit away from the County Council. Manner rejected the proposal.

Also included in the late night phone calls was an exchange between Siegel and Fagan that they should try to get some kind of a statement from AFSCME which would deal with the County Executive's concerns about the involvement of County Council and would help put "salve on the wounds" of the County Executive. This attempt ... at some point gained Duncan's approval.

On that same evening (Duncan called Crofoot). Duncan similarly told Crofoot how The Star article sent the County Executive into a fury, repeated the concern of the County Executive that it had appeared that he had been forced to the bargaining table by the pressure of the County Council, and stating "no way is he (Hogan) ever going to agree to a contract if the County Council ... gets any credit for it." At no time did Duncan ever say that the County Executive had any problem with the tentative agreement ....

On the morning of February 14, Siegel called Crofoot ... and suggested that they meet to prepare a statement. Crofoot assented and upon arriving at a designated restaurant was presented with a typed press release which, when Fagan arrived, was being modified by Siegel .... Siegel told Crofoot "you sign this and I think we can get the contract."

Although Crofoot refused to criticize (the) County Council ... a statement was finally agreed upon. No attempt was made to negotiate any new contractual provisions. However, when Siegel reported by phone to Duncan, and then told Crofoot to talk to him, Duncan informed Crofoot "(N)o statement whatever would salvage the thing now, and ... (the County Executive) is sitting there now picking the contract apart ...." (No joint county-union press release was issued.)

In his opinion the hearing officer identified and resolved, "Major Disputed Areas of 'Fact'." One of these was the issue, "Did the County Executive Approve the Tentative Agreement?" He concluded that "the evidence indicates that the County Executive must have given his negotiators his oral approval of what he understood they agreed to." ⁴ The hearing officer further concluded "from the evidence, that the agreement reached earlier on February 13, 1980, would not have been rejected by the County Executive had the article in The Washington Star not appeared that day." He found the County had violated, inter alia, § 113(a)(5) of the Labor Code ("refusing to bargain collectively in good faith ...").

Labor Code, § 114(c) states that "(i)f upon the preponderance of the testimony taken the Panel shall be of the opinion that any person named in the complaint has engaged in ... an unfair labor practice, then the Panel shall ... issue ... an order requiring that he cease and desist from such unfair labor practices and to take such affirmative action, including reinstatement with or without back pay, as will effectuate the policies of this law." On this phase of the case, the hearing officer stated that "(i)n view of the fact, that it has been ruled herein that the County Executive both directly and indirectly, through his agents, caused an agreement to be approved and where his agents may legally submit the contract to County Council on his behalf, no further discussion of the PERB's powers are needed." The PERB order, directed to "Prince George's County, through its officers, agents, representatives, negotiators, attorneys, successors and assigns" provided in part that they shall:

Take the following affirmative action

1. Formally...