Anne Arundel County Professional Firefighters Ass'n v. Anne Arundel County

EYLER, Judge. The question of first impression before us is whether appellant, Anne Arundel County Professional Firefighters Association (the Union), may compel appellee, Anne Arundel County (the County), to arbitrate, pursuant to grievance procedures contained in a collective bargaining agreement entered into by the parties, a dispute between it and the County regarding the composition of the bargaining unit. ⁴⁴⁹ Facts The Union has been the certified exclusive bargaining agent for certain uniformed employees of the Anne Arundel County Fire Department since collective bargaining began with the enactment of the County Employee Relations Act in 1972. Article 8, Title 4, Anne Arundel County Code (hereinafter “Code”). 1 Periodically, the County and the Union have negotiated new labor agreements referred to as Memoranda of Agreement. The Memorandum of Agreement for fiscal year 1996 (MOA or Agreement), effective July 1,1995 through June 30, 1996, provided for automatic annual renewal, absent written notice by either party of a desire to terminate, modify, or amend the Agreement.

Section 2.1 of the MOA provided that the County shall recognize the Union as the exclusive representative of the employees identified in § 2.2 of the MOA for the purpose of negotiating collectively with the County, pursuant to § 4-108 of the Code, 2 “with respect to wages, hours, working conditions and other terms of employment.” Section 2.2 of the MOA defined employees as all uniformed fire personnel of Anne Arundel County, including Fire Fighter II, Fire Fighter III, Fire Fighter/Cardiac Rescue Technician, Fire Fighter/Emergency Medical Technician Paramedic, Fire Lieutenant, and Fire Captain. Consequently, the certification of the Union as exclusive bargaining representative for certain personnel in accordance with § 4-107 3 of the Code included fire lieutenants and fire captains, beginning in 1972 and continuing through the fiscal year 1996 Agreement. In February 1996, the Union and the County began negotiating the terms of a new collective bargaining agreement for ⁴⁵⁰ fiscal year 1997. On February 29, the Union received a letter from the County Personnel Officer stating that the County would no longer recognize the Union as the exclusive representative of fire lieutenants and fire captains because they were “management and confidential employees” and that the County would cease deductions of Union dues from lieutenants and captains effective July 1, 1996. 4 The letter informed the Union that the Code prohibited the inclusion of fire captains and fire lieutenants in the bargaining unit because they are management employees, and management employees and non-management employees cannot be in the same unit.

Enclosed with the letter was an opinion by the County Attorney addressing the issue. Section 4-107(d) of the Code, as it existed prior to September 22, 1996, provided that “management and confidential employees may not be included in the same unit with non-management or non-confidential employees.” Additionally, § 4 — 105(b) of the Code, as it existed prior to September 22, 1996, provided that “management employees may not join, assist in, or participate in an employee organization or an affiliate of an employee organization that represents or seeks to represent employees under the direction of management employees.... ” Those sections had been in existence since enactment of the Employee Relations Act but, apparently, the County had not previously asserted that captains and lieutenants were management employees within the meaning of their terms. On March 5, 1996, the Union filed a grievance pursuant to Art. 6 of the MOA. Section 6.1 defines a grievance as “any difference or dispute between an employee and the County arising out of the employment relationship.” Section 6.2 sets forth a four step procedure for processing grievances.

Step I requires that notice be given to the affected employee’s immediate supervisor. Step II requires the submission of written notice to the head of the affected department. Step III provides for a written appeal to the Personnel Officer, and Step IV provides the employee or employee representative ⁴⁵¹ with a choice between a direct appeal to the Personnel Board and binding arbitration. In this case, the grievance proceeded to Step III, at which point the County Personnel Officer declared that the issue was “not grievable.” The Union then elected to invoke Step IV-B which provides for binding arbitration.

Maintaining that the dispute was not an arbitrable one, the County Personnel Officer refused to participate in the arbitration proceedings. The Union filed a complaint for declaratory judgment and “ancillary equitable relief’ in the Circuit Court for Anne Arundel County on April 4, 1996, asking for a decree that the dispute between the parties is arbitrable and an order compelling the County to arbitrate, based on its interpretation of the definition of grievance set forth in § 6.1 of the MOA. A hearing was held on April 12, 1996 wherein the County Personnel Officer testified that the parties had engaged in mediation regarding the new MOA, pursuant to § 4-110 of the Code, 5 but that the mediation had been unsuccessful in light of the parties’ inability to agree regarding the composition of the bargaining unit. Further, the County’s attorney represented to the court, and it was not disputed, that neutral fact-finding had been scheduled.

The circuit court, in a memorandum opinion and order dated April 25, 1996, held that the issue of whether fire lieutenants and fire captains are managers within the meaning of § 4-105(b) of the Code, and, therefore, must be excluded from the bargaining unit, relates to the negotiation of a future MOA ⁴⁵² governed by the dispute resolution procedures set forth in § 4-110 of the Code rather than the grievance procedure set forth in Art. 6 of the MOA. The Union then took this timely appeal. 6 Question Presented We quote from the briefs filed by the Union and the County because the difference in phraseology of the question before us delineates the crux of the dispute between the parties. According to the Union, the question on appeal is as follows: Does the Union’s grievance which concerns the County’s unilateral refusal to recognize the Union as the exclusive bargaining representative of fire lieutenants and fire captains present a dispute which arises out of the employment relationship? By contrast, the County frames the issue as follows: When the County and Union are negotiating a prospective contract, may the County be compelled to arbitrate the question of whether the job classifications of Fire Captain and Fire Lieutenant may be included in the representation unit to be covered by the contract?

Discussion The Union argues that the arbitration provision in Art. 6 of the MOA is broad and encompasses any and all disputes arising out of the employment relationship. The Union further argues that the question of which classes of employees ⁴⁵³ are members of the bargaining unit and entitled to representation by the Union is “[o]ne of the most basic terms of employment,” and thus, falls squarely within the definition of grievance set forth in § 6.1. The Union contends that its interpretation of § 6.1 is supported by those federal and Maryland cases which hold that, if a collective bargaining agreement contains an arbitration clause, there is a presumption that the matter in dispute is subject to arbitration. Citing AT & T Technologies v. Communications Workers, 475 U.S. 643, 650 , 106 S.Ct. 1415, 1419 , 89 L.Ed.2d 648 (1986) (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 , 80 S.Ct. 1347, 1352-53 , 4 L.Ed.2d 1409 (1960)), and Baltimore v. Baltimore Fire Fighters, Local 734, IAFF, 93 Md.App. 604, 610 , 613 A.2d 1023 (1992), cert. denied, 329 Md. 337 , 619 A.2d 547 (1993), the Union argues that a request for arbitration should not be denied unless it can be stated with positive assurance that the clause does not cover the dispute.

The Union concludes that the dispute is facially covered by the MOA grievance procedure and, at the very least, it cannot be said with assurance that the dispute does not arise out of the employment relationship. Finally, the Union argues that the County’s decision unilaterally to redefine the bargaining unit is a violation of the County’s Employee Relations Act, and particularly, § 4-107, governing certification, and § 4-109, governing decertification, of exclusive representatives. 7 ⁴⁵⁴ The County’s position is that the scope of the bargaining unit is an issue that arose during negotiations of a new collective bargaining agreement and has nothing to do with the 1996 MOA The County argues that the parties could not agree upon the terms of a new collective bargaining agreement, reached an impasse, and then resolved the impasse in accordance with the standard procedure provided in § 4-110 of the Code. Alternatively, the County argues that the grievance procedure applies only to issues involving conditions of employment, such as hours, wages, or work conditions, and does not apply to disputes regarding the composition of the bargaining unit. The County also argues that the question of whether fire captains and fire lieutenants are managers is a question of law which is more appropriately resolved by the courts than by an arbitrator.

Finally, the County argues that this appeal is moot because the County Council has resolved the dispute between the parties by passing Resolution 33-96 and, subsequently, by enacting Bill No. 64-96. See footnote 6, swpra. Preliminarily, we hold that the appeal is not moot. “A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.... ” Insurance Comm’r v. Equitable Life Assurance Soc’y of the United States, 339 Md. 596, 613 , 664 A.2d 862 (1995) (quoting Attorney General v. Anne Arundel County School Bus Contractors Assoc., 286 Md. 324, 327 , 407 A.2d 749 (1979)); Mercy Hospital v. Jackson, 306 Md. 556, 561 , 510 A.2d 562 (1986); Kindley v. Governor of Maryland, 289 Md. 620, 631 , 426 A.2d 908 (1981). We agree with the Union that Resolution 33-96 does not resolve the issue between the parties.

The Union maintains that the 1996 Agreement remains in effect based upon the fact that the Resolution never was ratified by the ⁴⁵⁵ membership. The Union has informed us that pending in the Circuit Court for Anne Arundel County is another declaratory judgment action and petition to compel arbitration of the issue of whether the 1996 Agreement remains in effect. In addition, the Union argues that if, in fact, the dispute constitutes a grievance governed by the grievance procedures of Article 6 of the MOA, the County Council did not have the authority to decide the issue under § 4-110 of the Code, and the action of the County Council is ultra vires. Finally, the Union argues that there remains a dispute between the parties regarding the County’s failure to utilize the decertification provisions set forth in § 4-109 of the Code.

Similarly, although Bill No. 64-96 does resolve the issue for the period from September 22, 1996 forward, it does not resolve the issue for the period between July 1, 1996 and September 21, 1996. We have no record upon which to evaluate what impact, if any, an arbitration decision in favor of the Union would have upon captains’ and lieutenants’ salaries, or other issues, for this time period, and consequently, no record upon which to find that the case has been entirely mooted. Further, even if the dispute had been rendered moot by the adoption of Resolution 33-96 and the enactment of Bill No. 64-96, we would decide the issue because the appeal involves matters of importance and public concern that are likely to recur if not decided now. Lloyd v. Supervisors of Elections, 206 Md. 36, 42 , 111 A.2d 379 (1954).

See also Equitable, 339 Md. at 613-14 , 664 A.2d 862 ; Mercy Hospital, 306 Md. at 562-63 , 510 A.2d 562 ; Kindley, 289 Md. at 631 , 426 A.2d 908 . Although we will decide moot cases only in rare instances, Reyes v. Prince George’s County, 281 Md. 279, 297 , 380 A.2d 12 (1977), this case meets all of the requisites for decision. The Union’s argument that the grievance procedures, and not the impasse procedures, are applicable to the current dispute between the parties regarding the composition of the bargaining unit, is an argument that has general application to negotiations of all terms of future agreements ⁴⁵⁶ between the parties. As the agreements between the Union and the County are renegotiated and renewed on an annual basis, the issue, whether the grievance procedures or impasse procedures are applicable to any particular dispute over terms of future agreements, is likely to recur.

In addition, given the expedited manner in which the impasse procedures are required to occur, any similar dispute likely would reach a similar resolution prior to our opportunity to review an action denying a petition to compel arbitration. Finally, the issue involves a matter between a government entity and its employees. Accordingly, even assuming that the case is moot, we will decide the appeal. Although it is true, as the Union notes, that arbitration is a favored form of dispute resolution, arbitration cannot be compelled in the absence of a contractual or, in the case of a government entity, statutory 8 obligation to arbitrate.

Stephen L. Messersmith, Inc. v. Barclay Townhouse Associates, 313 Md. 652, 658 , 547 A.2d 1048 (1988); Gold Coast Mall v. Larmar Corp., 298 Md. 96, 103 , 468 A.2d 91 (1983); Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs., 109 Md. App. 217, 290 , 674 A.2d 106 , cert. granted, 343 Md. 334 , 681 A.2d 70 (1996). Moreover, a government entity, such as the County, may not “enter into binding arbitration or binding collective bargaining agreements establishing wages, hours, pension rights, or working conditions for public employees” unless expressly authorized by statute. Office & Professional Employees International Union, Local 2 v. MTA, 295 Md. 88, 97 , 453 A.2d 1191 (1982).

See also Anne Arundel County v. Fraternal Order of Anne Arundel Detention Officers & Personnel, 313 Md. 98, 113-14 , 543 A.2d 841 (1988); Montgomery Co. Education Ass’n v. Board of Education, 311 Md. 303, 313 , 534 A.2d 980 (1987). In the instant case, the source of the County’s authorization to submit to binding arbitration is Article 8, Title 4 of ⁴⁵⁷ the Code and § 521(c) of the County Charter. Specifically, § 521(c) of the Charter provides that “[t]he parties to any appeal which the Personnel Board may hear under subsection (a)(2) of this section, may submit the matter to binding arbitration. The County Council shall by ordinance provide for the implementation of this section.” A substantially similar provision is set forth in § 4-112(a) of the Code.

Section 521(a)(2) of the Charter provides that the Personnel Board shall have the power [t]o hear and to decide finally for the County in open meeting appeals