Annapolis Professional Firefighters Local 1926 v. City of Annapolis

WILNER, Chief Judge. The union representing firefighters employed by the City of Annapolis appeals from an order of the Circuit Court for Anne ⁷¹⁶ Arundel County declining to enter a preliminary injunction against the City and dismissing the union’s complaint. 1 The underlying dispute is whether lieutenants and captains in the fire department are supervisory personnel and, for that reason, ineligible for inclusion within the bargaining unit. The City now claims they are; the union asserts they are not. The issue before us is whether the court erred in refusing to enjoin the City from taking that issue to impasse and then unilaterally removing lieutenants and captains from the unit.

Under the circumstances of this case, we hold that the court did not err. Underlying Facts The City of Annapolis has an ordinance governing employee-management relations—Chapter 3.32 of the City Code. It affords City employees, including firefighters, the right to self-organization and collective bargaining (§ 3.32.030) and provides for recognition of a union as the exclusive employee representative if, at an election held for the purpose, a majority of the employees in the “appropriate unit” desire to be represented by the union (§ 3.32.050 B). When a union has been so recognized, it has the exclusive right to represent “all employees in the unit for the purpose of collective negotiation with respect to the terms and conditions of employment____” Section 3.32.010 defines “appropriate unit” as: “a group of employees recognized as appropriate for representation, using such criteria as similarity of job duties, skills, wages, educational requirements, supervision, hours of work, job location and working conditions, by an employee organization.” One caveat to that definition is the provision in § 3.32.050 C that no unit shall be deemed appropriate “if it includes both supervisory and nonsupervisory personnel.” ⁷¹⁷ Section 3.32.070 declares certain conduct on the part of the City or a union to constitute a prohibited unfair labor practice.

The City, in particular, is prohibited from interfering with employees in the exercise of their right of self-organization and from refusing to negotiate in good faith with a recognized employee organization. That section further provides that any dispute as to whether the City or a union has committed an unfair labor practice is to be resolved by § 3.32.070 B to the State Mediation and Conciliation Service. The complaining party is directed to file a verified complaint with that unit which, after an investigation and hearing, is authorized in the ordinance to determine whether an unfair labor practice was committed and, if so, to enter an order requiring the offending party to desist and to take other affirmative action. The section provides further that, where the conduct may constitute both an unfair labor practice and a grievance, the aggrieved party may file either an unfair labor practice or a grievance, but not both.

The State Mediation and Conciliation Service is a statutory unit within the State Division of Labor and Industry. Md. Code Labor & Empl. art., § 2-107(b). The duties of the Service are set forth in title 4, subtitle 1 of the article and include the mediation of labor disputes and, where the parties agree, establishing arbitration boards to arbitrate such disputes. 2 If mediation fails and a disputant refuses to arbitrate, ⁷¹⁸ the Service is authorized to conduct an investigation, decide “which disputant is mainly responsible or blameworthy for continuance of the dispute,” and, over the signature of the Commissioner of Labor and Industry or the Chief Mediator, “publish in a daily newspaper a report that assigns responsibility or blame for the continuance of the dispute.” Id. at § 4-108. Section 3.32.070 of the City Code obviously invoked the jurisdiction of this State unit.

The City has had a collective bargaining agreement with the union for some period of time. During all of that time, the appropriate unit has included captains and lieutenants, notwithstanding the prohibition in § 3.32.050 C against mixing supervisory and nonsupervisory personnel in the same unit. Indeed, in the most recent (1990-93) agreement, the City expressly recognized the union as the sole and exclusive bargaining agent for “all eligible employees in the Annapolis Fire Department in the rank of firefighter through captain pursuant to the provisions of ... Section 3.21.050 of the Annapolis City Code.” At least implicit, if not explicit, in this is an historical recognition by the City that captains and lieutenants, despite the common perception of positions so designated, are not supervisory personnel.

The most recent contract between the City and the union became effective July 1, 1990 and was due to expire on June 30, 1993, subject to the provision in art. 27 of the contract that it would “automatically be renewed from year to year hereafter unless a successor to this agreement is executed by the parties hereto.” 3 Art. 27 also provided that, should either party desire to modify the agreement, it would have to notify the other party at least 120 days prior to June 30, 1993. Such ⁷¹⁹ notice would trigger the duty to negotiate the proposed changes. Article 28 provided: “If after a reasonable period of negotiations over the terms of an agreement, a dispute exists between the City and the Union, the parties may mutually agree that an impasse has been reached; except that if such dispute exists as of May 1, 1993 an impasse shall be deemed to have been reached. Whenever an impasse has been reached, the dispute shall be submitted to mediation.

If the parties are unable to agree to a mediator the Division of Mediation and Conciliation shall be required to provide a mediator. The parties hereto agree, that should the mediator recommend the process of fact-finding, that process shall be used in an advisory manner.” Negotiations over a new contract began in April, 1993. During the negotiations, the City, for the first time, contended that captains and lieutenants were supervisory personnel and therefore ineligible for inclusion in the same bargaining unit as the rest of the firefighters. The Union rejected that contention but continued to negotiate other matters.

As the expiration date of the agreement approached, the City announced that it would extend the term of the existing agreement for two weeks to allow time for the parties to reach agreement on a new contract. Subsequently, the City made what it termed its “Final Proposal.” In that offer, the City proposed that lieutenants could remain in the bargaining unit until October, 1993, while the question of their supervisory status would be referred to a third party for decision; captains, however, would be removed from the unit. The Union rejected that proposal and, subject to the automatic extension provision in art. 27, the collective bargaining agreement expired without a successor agreement having been reached. The City, giving no effect to the automatic extension provision in art. 27, then announced that the collective bargaining agreement had expired, that the parties were at an impasse, and that captains and lieutenants would thereafter be excluded from the bargaining unit.

The City also explicitly withdrew ⁷²⁰ its offer to have a third party determine the supervisory status of the lieutenants. Initially, the Union filed a verified complaint of unfair labor practices with the Division of Labor and Industry. It complained about a number of things, including the City’s removal of captains and lieutenants, noting that, of the 80 members of the unit, 22, or more than 25%, were captains or lieutenants. Indeed, the president and secretary of the union, who comprised two-thirds of the union’s negotiating committee, were lieutenants.

By unilaterally removing such personnel, the union claimed, the City was interfering with the employees’ right of self-organization and refusing to negotiate in good faith. On July 26, 1993, the Commissioner of the Division of Labor and Industry sent appellants a letter stating: “As you know, the Mediation and Conciliation Service was once a unit of the Division of Labor and Industry. Due to state budget cuts, the unit was abolished on July 1, 1991, and remains disbanded to date. Accordingly, the entity the City Ordinance authorizes to process the unfair labor practice charge does not exist.” The Commissioner also asserted that the Division would not assert jurisdiction over the charge as the ordinance did not impose an obligation on the State to do so and the Division lacked resources to devote to the matter. 4 The union then filed in the Circuit Court for Anne Arundel County a complaint for injunctive relief asserting, among other things, that it was “without an adequate administrative ⁷²¹ remedy or remedy at law to enforce their rights,” that the unilateral removal of fire lieutenants and captains from the bargaining unit “voidfed] their opportunity to participate through collective bargaining in the setting of their terms and conditions of employment,” “cause[d] grave harm to the organization and structure of the [union],” and “violate[d] each and every plaintiff’s rights to due process.” Accordingly, in order to preserve the status quo, it requested a preliminary injunction to restrain the City from unilaterally removing lieutenants and captains from the bargaining unit.

In a memorandum filed in support of the complaint, the union repeated the claims it had made in its unfair labor practice charge and asserted further that the unilateral removal violated the captains’ and lieutenants’ due process rights under the U.S. Constitution and the Maryland Declaration of Rights. The City responded with a motion to dismiss, arguing, in relevant part, that: (1) the court lacked jurisdiction because the creation of new remedies for violations of the collective bargaining ordinance was for the City Council, not the courts, (2) Maryland’s Anti-Injunction Act (Md.Code Labor & Empl. art. §§ 4-301 et seq.) prohibits courts from granting injunctive relief in this sort of labor dispute, (3) sovereign immunity barred the Union’s claim, (4) the complaint failed to state a claim upon which relief could be granted, (5) the lieutenants and captains lacked a “due process” right to be represented by a union, and (6) the plaintiffs did not allege an immediate irreparable injury that could not be adequately compensated with money. After a hearing, the court entered an order denying the request for preliminary injunction and dismissing the complaint. In the order, the court declared, in relevant part: “1.

There is no legal authority known to the Court which would support the issuance of an injunction against Defendant under the circumstances alleged in the Complaint; 2. As a result of the abolition of the State Mediation and Conciliation Service named in the City of Annapolis’ collective bargaining ordinance, § 3.32.070 of the Annapolis City ⁷²² Code, Plaintiffs may seek relief from alleged unfair labor practices on the part of Defendant, including the issue of the exclusion of fire captains and fire lieutenants from the Annapolis Professional Firefighters’ bargaining unit, by addressing their claims to the Annapolis City Council. 4. Injunctive relief is inappropriate because Plaintiffs have failed to establish that they will suffer immediate, irreparable injury which cannot be readily, adequately and completely compensated with money.” In this appeal, the union raises the single question, “Did the Court below err in failing to grant injunctive relief prohibiting the City of Annapolis from unilaterally excluding Fire Lieutenants and Fire Captains from the collective bargaining unit represented by [the union]?” Discussion The ultimate substantive issue in dispute is whether captains and lieutenants are supervisory personnel within the meaning of § 3.32.050 of the City Code. The intermediate issue is whether it is an unfair labor practice for the City unilaterally to impose its interpretation of § 3.32.050 and restructure the existing bargaining unit by removing captains and lieutenants after taking the issue to impasse.

The immediate issue is whether the circuit court was obliged to enjoin the City from continuing that conduct and thus, in doing so, effectively decide both the intermediate and the ultimate substantive issues. In enacting Chapter 3.32, and agreeing to art. 28 of the collective bargaining agreement, the City understood the obvious—that, in the course of collective bargaining, disputes could arise that the parties might not be able to resolve efficiently through unassisted bilateral negotiations. Two areas, or categories, of disputes were particularly recognized— an impasse in negotiating a new agreement and a claim of unfair labor practice. In both instances, a common and sensible way of resolving such disputes was chosen—referral ⁷²³ to the State Mediation and Conciliation Service, a unit created by the Legislature for precisely this purpose.

The agreement with the union was obviously subject to the ordinance and indeed made several references to it. The impasse provisions of art. 28, dealing with a breakdown in negotiating a new agreement, are entirely consistent with § 3.32.070 of the ordinance, calling for mediation of any dispute over an unfair labor practice charge. What we have then is a legislative direction and a voluntary written agreement to submit the very kind of dispute that arose in this case