Livers v. Board of Education

WENNER, judge. Appellant, George Livers (Livers), was employed by appellee, the Charles County Board of Education (CCBOE), as a Building Equipment Technician. In June of 1991, the CCBOE dismissed Livers. Although the local branch of the American Federation of State, County, and Municipal Employees AFL-CIO (AFSCME), sought to arbitrate Livers’s dismissal, pursuant to the negotiated agreement between it and the CCBOE, the CCBOE refused to submit to arbitration.

The arbitration proceeding was stayed, and Livers submitted the question of whether the CCBOE must participate in grievance arbitration to the Maryland State Board of Education (the State Board). The State Board ruled that Livers’s dismissal was not a legal subject of bargaining. Livers then noted an appeal to the Circuit Court for Charles County, which affirmed the decision of the State Board. This appeal followed.

On appeal, Livers asks us: Was the Maryland State Board of Education’s ruling correct that grievance arbitration over discipline or dismissal is an illegal subject of bargaining contrary to Md.Code Ann.Educ. Art. § 6-5100)). 1 ¹⁶³ Finding no error, we shall affirm the decision of the circuit court. BACKGROUND AFSCME Local 2981 (the Union) is the collective bargaining agent for non-certificated employees of the CCBOE. 2 The Union’s agreement (the Agreement) with the CCBOE provided, among other things, that the discipline and dismissal of non-certificated employees were matters subject to arbitration. On May 9, 1991, the CCBOE’s Assistant Superintendent for Supporting Services (Assistant Superintendent) notified Livers, a non-certificated employee, that, pursuant to the policy of the CCBOE, he was suspended without pay until disposition of drug related criminal charges that had been filed against him.

On June 11, 1991, the State nolle prossed the drug related criminal charges. On June 18,1991, the Assistant Superintendent dismissed Livers for misconduct. Livers challenged his dismissal by filing a grievance pursuant to the procedures outlined in Article 26 of the Agreement. On July 25, 1991, after several timely intermediate appeals, the Superintendent of the CCBOE (the Superintendent) affirmed Livers’s dismissal.

On August 9, 1991, the Union notified the CCBOE that, pursuant to Article 27, Section G of the Agreement, it was electing to proceed to arbitration. Subsequently, the Union filed a formal request for arbitration with the American Arbitration Association (AAA), and the AAA appointed an arbitrator, notifying all parties that Livers’s grievance would be arbitrated on March 25, 1992. Refusing to submit to arbitration, the CCBOE filed a Complaint for Declaratory Judgment and Stay of Arbitration in the Circuit Court for Charles County. Acting under a consent order, the circuit court stayed the arbitration until the State Board rendered a declaratory ruling as to the arbitrability of ¹⁶⁴ Livers’s grievance.

Upon receiving Livers’s appeal, the State Board assigned it to an administrative law judge (ALJ). Ruling in favor of Livers and the Union, the ALJ recommended that the CCBOE be required to proceed to arbitration. The State Board rejected the ALJ’s recommendation, holding that “a public school employer may not bargain over the remedies or means by which a non-certificated employee may challenge a discipline or discharge decision.” The State Board pointed out that Livers could challenge his dismissal in accordance with the procedures set forth in Md.Code (1974, 1991 RepLVol.), § 4-205(c)(4) of the Education Article (EA). As we have said, the circuit court affirmed the decision of the State Board.

I. EA § 6-510(b) defines the scope of bargaining between public school employers and unions as to non-certificated employees: 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. . EA § 6-408(b)(l) contains identical language in the subtitle concerning certificated employees. In construing EA § 6-408(b)(1), the Court of Appeals has made it clear that the State Board retains authority to determine matters of educational policy and that, as a consequence, such matters are not proper for negotiation between local school boards and union representatives. Montgomery Co. Ed. Ass’n v. Bd. of Educ., 311 Md. 303 , 534 A.2d 980 (1987) (MCEA v. Bd. of Ed.).

The Court recognized, however, that no clear line distinguishes matters of educational policy from matters subject to collective bargaining, (citations omitted). For example, matters that fall directly under ¹⁶⁵ § 6-408(b)(l) such as salary levels and hours of work also implicate educational policy considerations: higher salaries for some teachers may be necessary to attract or retain qualified personnel, and longer hours may enhance educational achievement ... In fact, virtually every managerial decision in some way relates to “salaries, wages, hours, and other working conditions,” and is therefore arguably negotiable. At the same time, virtually every such decision also involves educational policy considerations and is therefore arguably nonnegotiable.

Consequently, to determine whether a particular matter falls within § 6—408(b)(1), the State Board has balanced the interests of the school system as a whole. Id. at 316, 534 A.2d 980 . The Court explained that the State Board’s balancing approach was reasonable because it “exempts from collective bargaining those matters that predominantly concern the determination of educational policy but preserves the local board’s duty to negotiate matters of direct fundamental concern to employees .” Id. at 317 , 534 A.2d 980 . The Court also observed that, inasmuch as the line between educational policy matters and matters subject to arbitration is difficult to draw and may often be “ad hoc,” application of the State Board’s expertise is extremely important.

Unless it is demonstrated in a particular case that the line drawn by the State Board under § 6-408(b)(l) is arbitrary, or clearly in violation of the Education Article, or otherwise contrary to the law, the State Board’s determination will normally be controlling. Id. at 318, 534 A.2d 980 . With these principles firmly in mind, we turn to the decision of the State Board and Livers’s arguments.

II

In its written opinion, the State Board explained that, in order to resolve this issue, it had utilized the balancing test ¹⁶⁶ to determine whether the interests of the employee in the matter outweigh the interests of the school system as a whole in the matter. If the employee’s interests outweigh those of the school community, the matter is a negotiable subject of bargaining. If the school system’s interests predominate, the matter is non-negotiable matter of educational policy within the local board’s control. It noted that Livers had argued that the scale should tip in his favor because “the only way that he may get a fair hearing on a discipline or discharge decision is through the grievance process and ultimately through arbitration.” The CCBOE, on the other hand, pointed out that [m]any times administrative actions concerning discipline and discharge arise as a result of corrupt or criminal actions of an employee such as sexual assault upon a student, sale of a controlled dangerous substance to a student, or driving a school vehicle while intoxicated.

If