Charles County Supporting Services Employees Local Union 301 v. Board of Education

Melvin, J., delivered the opinion of the Court. The central issue presented by this appeal is whether the court below erred in denying a petition for a writ of mandamus to compel the Charles County Board of Education to determine the composition of a bargaining unit for the noncertiñcated public school employees of Charles County. For the reasons to be stated in this opinion, we conclude that the initial decision by the public school employer to designate an exclusive representative for its noncertiñcated employees is discretionary and that if the public school employer chooses to not designate any exclusive representative for. such employees, as was the case here, then it is under no duty to determine the composition of a bargaining unit. Accordingly, mandamus was properly denied, and we shall affirm the judgment below.

I Although it is clear beyond peradventure that public employees have a First Amendment right to promote, associate with, and be represented by labor unions, Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463, 465 , 99 S. Ct. 1826 , 60 L. Ed. 2d 360 (1979); see Cherry ³⁴¹ v. Burnett, 444 F. Supp. 324, 330 (D. Md. 1977), it is nevertheless equally plain that the First Amendment does not afford public employees a right of collective bargaining as such; that is, the Constitution does not impose an affirmative obligation on public employers to either recognize, bargain with, or otherwise respond to employee organizations. Smith, supra; see Newport News Fire Fighters Association Local 794 v. City of Newport News, Virginia, 339 F. Supp. 13 (E.D. Va. 1972). Consequently, the duty sought to be imposed on the Charles County Board of Education to respond to the union demands in the present case, if it exists at all, must be found in State law. 1 In 1968 the Maryland General Assembly enacted a detailed statute (Ch. 483 of the Acts of 1968) governing the organization of certificated public school employees. This Act, with but minor changes since its original enactment, is now codified as Maryland Code (1978), Title 6, Subtitle 4 of the Education Article. 2 Section 6-402 (a) of that subtitle merely recognizes rights already extant by virtue of the First Amendment: "Employees may form and join organization. — Public school employees may form, join, and participate in the activities of employee organizations of their own choice for the purpose of being represented on all matters that relate to salaries, wages, hours, and other working conditions.” (Emphasis in original).

However, Sections 6-404 (a) and 6-408 (b) (1) go beyond the First Amendment and — in tandem — establish for certificated employees a right of collective bargaining by ³⁴² imposing on public school employers a correlative duty. Section 6-408 (b) (1) establishes the duty of negotiation: "Representatives to negotiate. — On request a public school employer or at least two of its designated representatives shall meet and negotiate with at least two representatives of the employee organization that is designated as the exclusive negotiating agent for the public school employees in a unit of the county on all matters that relate to salaries, wages, hours, and other working conditions.” (Descriptive heading emphasized in original; other emphasis added.) This provision, in itself, does not impose a general duty to bargain collectively with any employee organization, because, by its terms, the duty to negotiate only exists with respect to "designated” employee organizations. Designation is a process whereby an employee organization is determined, by criteria also fixed in Subtitle 4, to be the exclusive representative of a specified unit of employees. Thus, it is the duty to so designate an employee organization that makes § 6-408 (b) (1) operative and, thereby, generates a duty of collective bargaining.

The duty to designate is set forth in § 6-404 (a): "Public school employer to designate exclusive employee organization. — Each public school employer shall designate, as provided in this subtitle, which employee organization, if any, shall be the exclusive representative of all public school employees in a specified unit in the county.” (Descriptive heading emphasized in original; other emphasis added.) ³⁴³ That §§ 6-404 (a) and 6-408 (b) (1) create imperative duties and correlative rights is clear by their terms and has not been questioned. In addition to affording certificated employees the substantive right of collective bargaining, Subtitle 4 also dictates the procedures by which that right is to be effected. There are specified procedures regarding both designation and negotiation. The procedural duties of the public school employer with respect to the task of designation are set forth primarily in §§ 6-404 (b) and 6-405.

The first step in the designation process is the specification of bargaining units pursuant to § 6-404 (b): "Composition of unit. — The public school employer shall determine the composition of the unit in negotiation with any employee organization that requests negotiation concerning the composition of the unit.” (Emphasis in original.) Specification of appropriate bargaining units then engages the minimum enrollment and voting requirements detailed in § 6-405 that, once satisfied by an employee organization with respect to a specified unit, compel designation of that organization as the exclusive bargaining representative for all employees in the unit. The public school employer’s duties with regard to the conduct of negotiation with the exclusive representative so designated are delineated in § 6-408 of the statute. A statutory scheme parallel to that enacted in 1968 for certificated employees was enacted in 1974 to govern the organization of noncertiñcated public school employees. 3 This Act, with but only minor changes since its original enactment, is now codified as Subtitle 5 of Maryland Code (1978) Education Article, Title 6. Although parallel to, and in many respects identical with, Subtitle 4, Subtitle 5 is not without its differences.

The most notable distinction, at least with regard to the present case, is found in § 6-505 (a): "Public school employer may designate exclusive ³⁴⁴ employee organization. — Each public school employer may designate, as provided in this subtitle, which employee organization, if any, shall be the exclusive representative of all public school employees in a specified unit in the county.” (Descriptive heading emphasized in original; other emphasis added.) As highlighted in the above quotation, § 6-505 (a) is distinguished from its analog in Subtitle 4, § 6-404 (a), in that it employs the word "may” as opposed to "shall,” thereby indicating a power rather than a duty to designate an exclusive representative. We are aware that legislative use of the word "may” or "shall” does not, in itself, control judicial construction of the relevant statute as permissive or mandatory, Hitchins v. City of Cumberland, 215 Md. 315, 323 , 138 A.2d 359 (1958); at the same time, we also acknowledge that "the word [may] bears its ordinary significance of permission unless the context [or] the purpose of the statute shows that it is meant to be imperative. . . .” Fleishman v. Kremer, 179 Md. 536, 541 , 20 A.2d 169 (1941). With regard to § 6-505 (a), both the context of that section and the purpose of Subtitle 5 as a whole bolster a permissive construction. Viewed contextually, the designation clause of § 6-505 (a) must be considered in light of its Subtitle 4 counterpart, § 6-404 (a).

That the legislature in juxtaposing what are now §§ 6-404 (a) and 6-505 (a) chose to use "may” in the latter but "shall” in the former, and further that the legislature in recodifying these provisions in 1978 as part of the Education Article did not deem it appropriate to eliminate this difference, we think strongly evidence the intent of the legislature to have the word "may” in § 6-505 (a) "bear its ordinary significance of permission.” Moreover, in the title of the original enactment of what is now Subtitle 5 the legislature declared that, inter alia, the Act was "For the purpose of permitting certain local boards 4 ³⁴⁵ of education to negotiate with certain organizations which represent noncertificated public school employees...” Ch. 719 of the Acts of 1974 (emphasis added). We find in this declaration a clear legislative purpose to authorize rather than compel the public school employers encompassed by its provisions to negotiate with their noncertificated employees. Manifestly, a permissive construction of the designation clause in § 6-505 (a) is consistent with this legislative intent and to construe it otherwise would clearly contravene that intent. Section 6-510 (b), by language identical to that of § 6-408 (b) (1), supra, requires public school employers to negotiate with "designated” employee organizations.

Hence, if § 6-505 (a) were given a mandatory reading — compelling public school employers to designate exclusive representatives for noncertificated employees — then its operative effect would be to engage § 6-510 (b), thereby, imposing an imperative duty on public school employers to also negotiate with noncertificated employees in the same way that Subtitle 4 imposes such a duty with regard to employees that are certificated. Clearly, this would violate the express intent of the legislature. On the other hand, if § 6-505 (a) is construed as discretionary, in accordance with its language, then unless the public school employer decides that it will allow exclusive representation among its noncertificated employees and an exclusive representative is in fact designated pursuant to procedural provisions of Subtitle 5, the § 6-510 (b) duty to negotiate is not triggered, and the employer retains the discretion intended by the legislature. In sum, only a permissive reading of the § 6-505 (a) designation clause, in contrast to the mandatory construction associated with its Subtitle 4 counterpart, is consistent with the language and context of § 6-505 (a) and with the express legislative purpose of the overall statutory scheme of which it is a part.

For these reasons, we conclude that public school employers affected by Subtitle 5 have the statutory discretion 5 to decide whether they will designate any employee ³⁴⁶ organization as an exclusive representative of their noncertificated employees. It should be observed that there is no merit to an allegation that a permissive reading of § 6-505 (a) denies noncertificated employees the right of collective bargaining. As discussed at the outset, the right of collective bargaining ■ arises only by statute. Furthermore, as alluded to, the design of Subtitles 4 and 5 is such that the "designation” provision of each is the linchpin that determines the right of public school employees to engage in collective bargaining.

It will be recalled that Subtitle 4 creates such a right with regard to certificated employees only because § 6-404 (a) imposes a duty to designate exclusive representatives, thereby, triggering the § 6-408 (b) (1) duty to negotiate. No such triggering occurs in Subtitle 5. Subtitle 5, by language identical to that used in Subtitle 4, recognizes the First Amendment rights of noncertificated employees: "Employees may form and join organization. — Public school employees may form, join, and participate in the activities of employee organizations of their own choice for the purpose of being represented on all matters that relate to salaries, wages, hours, and other working conditions.” § 6-503 (a) (emphasis in original.) Also, § 6-510 (b), by language identical to that of § 6-408 (b) (1), establishes a duty to negotiate with "designated” employee organizations. However, because we construe § 6-505 (a) to be permissive such that it does not impose an imperative duty of designation, Subtitle 5 does not go so far as to create the substantive right of collective bargaining for noncertificated employees.

Thus, it cannot be said that § 6-505 (a), as construed, deprives noncertificated employees of the right of collective bargaining when — apart from that section — no such right is granted noncertificated employees in the first place. ³⁴⁷ Although Subtitles 4 and 5 are thus distinct with regard to the substantive right of collective bargaining, the procedural provisions of the two subtitles are virtually identical. It is within the procedural realm of Subtitle 5 that appellant bases its claim for mandamus. II The facts are not in dispute. In December of 1978, some members of the Charles County Supporting Services Employees Local Union 301 ("the Union”) 6 went before the Charles County Board of Education ("the Board”) requesting the Board to determine the composition of a bargaining unit for the noncertificated public school employees of Charles County and to designate the Union as the exclusive bargaining representative for the unit so designated.

At that time, the matter was