Mayor of Baltimore v. Baltimore City Fire Fighters, Local 734

Moore, J., delivered the opinion of the Court. The defendant-appellant, Mayor and City Council of Baltimore ("City”) appeals from an order of the Superior Court of Baltimore City in a mandamus action granting summary judgment in favor of the plaintiff-appellee, Baltimore City Fire Fighters Local 734 ("Union”). The effect of the court’s order was to require the City to submit to arbitration the question of its entitlement to make deductions from the paychecks of certain employees for overpayments of compensation for overtime, after the City had notice of its error but continued to overpay. The critical issue is whether there existed an agreement between the City and the Union to arbitrate the dispute.

We hold there was not. The City’s demurrer should have been sustained. We, therefore, reverse. I The facts as gleaned from the pleadings and affidavits filed below may be summarized as follows: The Union is the certified collective bargaining representative of all uniformed employees of the Baltimore City Fire Department below the rank of Fire Lieutenant.

At all times applicable herein, the Union and the City were governed by a collective bargaining agreement referred to as a Memorandum of Understanding ("Memorandum”) which included customary provisions concerning wages, hours, working conditions, and procedures for settling grievances. On or about October 16, 1979, and prior thereto, the City issued paychecks to a number of fire department employees from each of which the sum of $10 had been deducted. The deductions represented partial recoupments for overpayments by the City to the employees for overtime worked. We are told that the Central Payroll Division of the ⁶² City discovered, in November 1978, that an incorrect rate of overtime pay had been used for certain employees, but that the overpayments continued until April, 1979. 1 On October 18, 1979, pursuant to the "Grievance and Arbitration Procedure” contained in Article VI of the Memorandum, the Union filed a grievance protesting that the $10 deductions were "unauthorized, wrongful and improper.” The provisions of Article VI were in pertinent part as follows: "A. Subject to any limitations of existing law, any grievance defined in the Municipal Employee Relations Ordinance (Section 120 (f)) as a dispute concerning the application or interpretation of the terms of this Memorandum of Understanding or a claimed violation, misinterpretation or misapplication of the rules or regulations of the Employer affecting the terms and conditions of employment may be settled in the following manner: Step 1.

Within fifteen (15) calendar days of the date of the grievance or knowledge by the affected employee of the occurrence giving rise to the grievance, the employee, accompanied by an authorized representative of the Union, shall orally discuss the grievance with his immediate officer. The aggrieved employee and representative shall attempt to resolve the complaint with all parties involved. In the event the grievance is not resolved at this level, the employee and his Union representative shall present the grievance in writing to the Senior Officer or House Captain. If the grievance is not resolved at this level within three days, the House Steward and Battalion Representative shall present the grievance in writing to the Battalion Chief.

Step 2. If the grievance is not satisfactorily resolved within three days of presentation to the Battalion Chief, the aggrieved employee shall forward the grievance, in writing, through the Battalion Vice President to the Deputy Chief. ⁶³ Within seven calendar days of the presentation, the Deputy Chief shall hold a meeting with the appropriate Union representative to discuss the grievance. Step 3. If the grievance has not been satisfactorily resolved in Step 2, a written grievance may be taken to the Chief of the Fire Department, or his designee, within ten calendar days following the completion of Step 2.

The Chief shall meet and discuss the grievance with the appropriate Union official within ten calendar days of receipt of the grievance. A written answer to the grievance shall be submitted to the employee and the Union President within seven calendar days thereafter. Any grievance concerning the direct action of the Chief of the Fire Department or the Board of Fire Commissioners, or any grievance which affects large numbers of employees may be commenced in Step 3. Step 4.

If the grievance has not been satisfactorily resolved in Step 3, the grievance may be taken to the Board of Fire Commissioners by the Union President within ten calendar days following the completion of Step 3. Within five calendar days of receipt of the grievance, the Board of Fire Commissioners shall meet with the Union Steward, the President of the Union and the aggrieved employee to discuss the grievance. The Board of Fire Commissioners shall respond in writing to the President of the Union within ten calendar days thereafter. Step 5.

If the grievance has not been satisfactorily resolved in Step 4 and the Union’s Executive Board finds the grievance to have merit, a review by an impartial arbitrator may be requested within seven calendar days following the completion of Step 4, by filing a written notice with the Labor Commissioner. (a) The parties shall select an arbitrator; if they are unable to make a selection, then they shall select a name from a panel obtained from the Federal Mediation and Conciliation Service. (b) The arbitrator’s decision shall be final and binding.” (Emphasis added.) ⁶⁴ During ensuing discussions prior to Step 5, the Union’s position was that recoupment by the City for the overpayments was permissible only for the amounts paid before the City was notified of its error, and that any deductions for overpayments thereafter were impermissible. The dispute was not resolved through the first three steps of the procedure.

The Board of Fire Commissioners ruled at Step 4 that there did not appear to be a "grievable” issue and stated that the matter "can therefore be considered resolved.” Pursuant to Step 5, the Union thereupon filed a written notice with the Labor Commissioner requesting that the matter be submitted to an arbitrator. On November 9,1979, the Commissioner responded that the matter was "nongrievable” and therefore, refused to submit it to arbitration. On November 30, 1979, the Union filed its bill of complaint for a writ of mandamus to compel arbitration. It also filed a motion for summary judgment.

The City demurred on the ground that there was no grievance within the meaning of that term as defined in the Memorandum. The court granted the Union’s motion for summary judgment and overruled the City’s demurrer. In a Memorandum Opinion, the court stated in part: "It is the opinion of this Court that to allow the Defendants to determine what is and what is not a "grievable issue” once the procedures delineated in Article VI have begun would destroy the very purpose of the Article, particularly Step 5. Giving the Defendants such authority would allow them to determine unilaterally what issues would go before an arbitrator since this determination that an issue is "non-grievable” could obviate the determination by an arbitrator what is or is not a grievable issue.

Moreover, the language of Article VI, Step 5 clearly states that the only substantive criteria that must exist in order to have an arbitrator appointed is: (1) The grievance has not been satisfactorily resolved; and (2) the Union’s Executive Board finds the ⁶⁵ grievance meritorious. Therefore, it is the Plaintiff, not the Defendants, who determine what is a ’grievable issue’ suitable for arbitration once the fírst four steps of Article VI have been completed. ” (Emphasis added.) The court then ordered that the "grievance in question” be submitted to arbitration "as provided in Step 5 of Article VI of the Memorandum of Understanding.” II The Union correctly observes in its brief that the fundamental question presented is whether a "grievance” existed. It states: "The sole prerequisite for resolving a dispute in accordance with the Grievance and Arbitration Procedure is that the matter be a