Merryman & F.O.P. v. Univ. of Baltimore

Keith Merryman and Fraternal Order of Police, Lodge 146 v. University of Baltimore, No. 33, September Term, 2020 LABOR AND EMPLOYMENT – MD. CODE ANN., EDUC. (1978, 2014 REPL. VOL.) (“ED”) §§ 13-201 TO 13-207 – GRIEVANCE PROCEDURE – ED § 13-201(c) – “GRIEVANCE” – “GRIEVABLE ISSUE” – Court of Appeals held that, under memorandum of understanding between parties, which incorporated grievance procedures set forth in Md. Code Ann., Educ.

(1978, 2014 Repl. Vol.) (“ED”) §§ 13-201 to 13-207, including definition of “grievance” set forth in ED § 13-201(c), complaint brought by petitioners concerning holiday leave was not grievable issue because it was dispute that “pertain[ed] to [] general level of . . . fringe benefits, or to other broad areas of financial management and staffing[.]” Holiday leave is fringe benefit and complaint concerning number of hours of holiday leave to which all officers are entitled, which essentially requested that each officer receive additional twenty-two hours of holiday leave per year, was complaint pertaining to general level of fringe benefits provided to officers and thus not grievable issue. Circuit Court for Baltimore City Case No. 24-C-18-006045 Argued: February 1, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 33 September Term, 2020 ______________________________________ KEITH MERRYMAN AND FRATERNAL ORDER OF POLICE, LODGE 146 v. UNIVERSITY OF BALTIMORE ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Opinion by Watts, J. ______________________________________ Filed: March 26, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-03-26 09:52-04:00 Suzanne C. Johnson, Clerk Md. Code Ann., Educ. (1978, 2014 Repl.

Vol.) (“ED”) §§ 13-201 to 13-207 sets forth grievance procedures used to resolve certain disputes or complaints between the institutions that comprise the University System of Maryland and their employees. ED § 13-203 establishes a three-step procedure for addressing grievances brought by employees. To be subject to the three-step grievance procedure, a complaint must meet the definition of a grievance as set forth in ED § 13-201(c) and must not be a matter that the section identifies as not a grievable issue: “Grievance” means any cause of complaint arising between a classified employee or associate staff employee and his employer on a matter concerning discipline, alleged discrimination, promotion, assignment, or interpretation or application of University rules or departmental procedures over which the University management has control. However, if the complaint pertains to the general level of wages, wage patterns, fringe benefits, or to other broad areas of financial management and staffing, it is not a grievable issue.[1] 1 The definition of “grievance” contained in ED § 13-201(c) is the version of the statute that was incorporated into a memorandum of understanding between the parties in this case and which remained in effect as the parties went through the three-step grievance process concerning the dispute at issue in the case.

Effective October 1, 2019, the General Assembly amended ED § 13-201(c). See 2019 Md. Laws 4069 -71 (Vol. V, Ch. 697, H.B. 822); 2019 Md. Laws 4072 -74 (Vol. V, Ch. 698, S.B. 711).

Md. Code Ann., Educ. (1978, 2018 Repl. Vol., 2019 Supp.) § 13-201(c) now provides: (1) “Grievance” means any cause of complaint arising between a regular full- time or part-time employee and the University on a matter concerning discipline, alleged discrimination, promotion, assignment, or interpretation or application of University rules or departmental procedures over which the University management has control. (2) “Grievance” does not include: (i) Complaints on the general level of wages, wage patterns, fringe benefits, or other broad areas of financial management and staffing; or ED § 13-203(a) provides that the three-step grievance procedure is available only if, after informal discussion with a supervisor, a dispute remains unresolved.

ED § 13- 203(b) describes step one of the grievance procedure, which involves initiation of a complaint presented to a department head or chairman or designee followed by a conference and a written decision from the department head or chairman or designee. ED § 13-203(c) sets forth step two of the grievance procedure—appeal of the initial written decision—which similarly involves a conference followed by a written decision from the president of the constituent institution or the president’s designated representative. ED § 13-203(d) sets forth step three of the grievance procedure, which involves arbitration or submission of the grievance to the Chancellor of the University System of Maryland, who may delegate responsibility to the Office of Administrative Hearings for an administrative hearing to be conducted by an administrative law judge. In this case, the Fraternal Order of Police, Lodge 146 (“the Union”), Petitioner, is the bargaining unit representative of the police officers who work at the University of Baltimore (“the University”), Respondent.

Keith Merryman, Petitioner, is a police officer employed by the University and the President of the Union.2 In January 2018, the (ii) Any cause of complaint by any employee who is not represented by an exclusive representative under Title 3 of the State Personnel and Pensions Article. The amendment to the definition of “grievance” set forth ED § 13-201(c) is of no consequence to our analysis. 2 Although both Merryman and the Union are Petitioners, because Merryman’s involvement in the case is due to his role as the President of the Union, unless specifically referring to an action that Merryman individually took, we refer to actions by Petitioners as actions by the Union. -2- University implemented a work schedule change for police officers, moving from five eight-hour shifts to four ten-hour shifts per week. The schedule change did not affect the total number of hours police officers were required to work a week. According to Merryman, because, as a result of the schedule change, an officer’s workday now consisted of ten hours, each holiday should also “be credited at the same rate of 10 hours.” In other words, the Union sought to have a holiday defined as consisting of ten hours, seeking a total of 110 hours rather than eighty-eight hours of holiday leave per year, essentially requesting twenty-two additional holiday leave hours per year for all officers of the Union.

Merryman, on behalf of himself and all other members of the Union, initiated a Step 1 Grievance through the statutory grievance procedure, which had been incorporated into a memorandum of understanding between the parties. The University concluded that the complaint pertained to fringe benefits and staffing and was not a grievable issue under the memorandum of understanding and ED § 13-201(c). Merryman next submitted a Step 2 Grievance. The University again concluded that, pursuant to the memorandum of understanding and ED § 13-201(c), holiday leave is a fringe benefit, and a dispute involving holiday leave is not a grievable issue.

Additionally, the University determined that it could not increase the amount of holiday leave authorized by the University System of Maryland and the Board of Regents. The Union filed a Step 3 Grievance with the Office of Administrative Hearings, requesting a hearing before an administrative law judge (“ALJ”). The University moved to dismiss the grievance on the ground that a complaint about holiday leave was not grievable because it was a complaint pertaining to fringe benefits. Following a hearing on -3- the motion to dismiss, the ALJ denied the motion, concluding that the issue raised by the Union was one of contract interpretation and thus grievable.

Thereafter, the ALJ conducted an evidentiary hearing on the merits, and issued a written decision ruling in favor of the Union. Among other things, the ALJ concluded that, as a result of the schedule change, the University effectively changed the definition of a workday from eight hours to ten hours and that the memorandum of understanding should be interpreted to provide officers with ten hours of paid leave for each holiday (rather than eight hours). The ALJ ordered the parties to identify the officers affected by the schedule change (officers who had used non- holiday leave hours for a holiday) and to credit those officers with the non-holiday hours used. The University sought judicial review in the Circuit Court for Baltimore City.

After a hearing on the matter, the circuit court issued an order affirming in part and reversing in part the ALJ’s decision. The circuit court affirmed the ALJ’s conclusion that the University changed the definition of a workday to ten hours and that the change affected the allocation of holiday leave. The circuit court reversed, however, as to all other conclusions made by the ALJ. The circuit court found that, pursuant to ED § 12-105, neither the circuit court nor the ALJ could issue an order that had the effect of increasing the budget of the University System of Maryland.3 ED § 12-105(a)(1)(ii) provides that, “[i]n consultation with the institutions and the 3 Chancellor, the Board [of Regents] shall: [r]eview, modify, as necessary, and approve consolidated budget requests for appropriations for the University System of Maryland with respect to: 1 The operating budget; and 2.

The capital budget[.]” (Paragraph breaks omitted). -4- The Union appealed to the Court of Special Appeals, which, in a reported opinion, held that the ALJ lacked jurisdiction over the complaint because the dispute was not a grievable issue under the statutory grievance procedure contained in the memorandum of understanding. See Merryman v. Univ. of Baltimore, 246 Md. App. 544, 560 , 231 A.3d 498, 508 (2020). The Court of Special Appeals concluded that the parties could not, by agreement, confer jurisdiction upon the ALJ by expanding the scope of grievances covered by the statutory procedures incorporated into the memorandum of understanding. See id. at 559 , 231 A.3d at 507 .

Because it held that the ALJ lacked jurisdiction, the Court of Special Appeals did not address the merits of the ALJ’s decision or the propriety of the remedy ordered. See id. at 560 , 231 A.3d at 508 . The Court of Special Appeals vacated the circuit court’s judgment and remanded the case to that court with instruction to remand the case to the ALJ for the ALJ to dismiss the grievance proceeding. See id. at 561 , 231 A.3d at 508 .

Thereafter, the Union filed in this Court a petition for a writ of certiorari, which this Court granted. See Merryman v. Univ. of Baltimore, 471 Md. 101 , 240 A.3d 852 (2020). Against this backdrop, at bottom, we must determine whether the complaint about holiday leave presents a grievable issue that is subject to the three-step grievance procedure set forth in the memorandum of understanding. We hold that, under the memorandum of understanding, which incorporates the grievance procedures set forth in ED §§ 13-201 to 13-207, including the definition of a “grievance” set forth in ED § 13-201(c), the complaint brought by the Union concerning holiday leave does not constitute a grievable issue because it is a dispute that “pertains to the general level of . . . fringe benefits, or to other -5- broad areas of financial management and staffing[.]” Holiday leave is a fringe benefit and the complaint concerning the number of hours of holiday leave to which officers are entitled—which essentially requested that each officer receive an additional twenty-two hours of holiday leave per year—is a complaint pertaining to the general level of fringe benefits provided to officers and as such is not a grievable issue.

As such, we affirm the judgment of the Court of Special Appeals, although for somewhat different reasons. BACKGROUND Policy VII-7.30 The Board of Regents of the University System of Maryland has adopted Policy VII-7.30 (Policy on Holiday Leave for Regular Nonexempt and Exempt Staff Employees), Part II (Amount of Holiday Leave) of which states that “[e]mployees are eligible to earn 11 holidays per year, or 12 holidays during a year of general or congressional elections[.]”4 Part IV (Scheduling of Holidays for Continuous Operations) states: Institutions which have departments that must provide service on a continuous seven day-a-week basis may schedule an employee’s holidays. Affected departments may schedule a specific day or days each month as a day off, and these days shall be treated in the same manner as regular holidays are treated for other employees. For employees in this category, one day of holiday leave shall be granted for each month, except that for the months of January and July when two days of holiday leave shall be granted.

During a year of general or congressional elections, an additional day shall be granted for the month of November. Institutions have the sole discretion to determine which individual employees in a department will be placed in this category. 4 On December 3, 1999, the Board of Regents adopted Policy VII-7.30. On January 2 and 12, 2000, Policy VII-7.30 became effective, and was later amended on October 9, 2015. -6- The Memorandum of Understanding The Union and the University entered into a Memorandum of Understanding, effective from July 1, 2016 through June 30, 2017 (“the MOU”).5 The MOU applies to the relationship between the University and its sworn police officer unit.6 Article 6 of the MOU, entitled “Hours of Work,” addresses officers’ work hours. Pursuant to Section 1 of Article 6, a “regular workday” for University police consists of eight hours.

According to Section 3, a “regular workweek” consists of five regular workdays. Section 5 gives the University the discretion to change the work schedule “as deemed necessary to meet the operational needs of the University[,]” provided that the University gives the affected officers at least fourteen days’ notice of any permanent change in the work schedule. 5 The MOU contained in the record indicates that it expired on June 30, 2017. The dispute regarding holiday leave occurred after that date. Section 2 of Article 29 of the MOU contemplated renewal of the MOU, though, stating: Should either party desire to negotiate a successor MOU, they may only do so by providing written notification of its intent to do so to the other party by August 1, 2016.

After notification is provided, the parties shall then commence negotiations for a successor MOU during the remainder of the last year of this MOU at dates and times agreed by the parties. At an evidentiary hearing before the ALJ, a witness for the University testified that the MOU was still in effect, and that there was a revised agreement pending ratification. Like the Court of Special Appeals, we assume that the MOU was renewed or otherwise extended. See Merryman v. Univ. of Baltimore, 246 Md. App. 544 , 547 n.2, 231 A.3d 498 , 500 n.2 (2020). 6 According to the MOU, the terms “employees,” “sworn police officers,” and “employees covered by this MOU” “mean all eligible sworn police officers employed by the University in the following job classifications: Police Officer I, Police Officer II.” -7- The MOU addresses various forms of leave.7 Relevant here, Article 15 of the MOU addresses holidays.

Section 1 of Article 15, entitled “Recognized Holidays,” states that “[b]argaining unit employees are eligible to earn 11 holidays per year, or 12 holidays during a year of general or congressional elections, and any other special observance as required by the legislature and Governor.” Section 1 lists twelve holidays for which bargaining unit employees were eligible in an election year, including Election Day. In addition to those holidays, bargaining unit employees are granted three administrative holidays each year. Section 2 of Article 15 of the MOU, titled “Scheduling of Holidays for Continuous Operations,” explains that University police would sometimes be required to work on holidays, but would be permitted to use accrued holiday leave hours to schedule an alternative day off or, if rescheduling was not possible, an officer could cash in the hours and receive a day’s pay in lieu of taking another day off. Specifically, Section 2 provides: Holidays for Sworn Police Officers will be prescheduled based upon the workweek schedule rotation.

The University reserves the right to assign holidays in accordance with this schedule rotation and shall make an effort to grant the Employee the day off requested, subject to operational needs. An Employee may be required to work on the Employee’s prescheduled holiday. If required to work on their prescheduled holiday, the Employee will be paid at their regular straight time rate of pay for all hours worked plus any overtime pay required in accordance with Article 6 Hours of Work, Section 7 of this MOU. However, in the event, the Officer is required to 7 For example, Article 12 of the MOU addresses sick leave.

Article 13 addresses other types of leave, including annual leave, personal leave, the leave reserve fund, family and medical leave, jury service and legal actions leave, educational leave and professional improvement leave, administrative leave, military leave with pay, call-up to active military duty during a national or international crisis or conflict, leave of absence without pay, leave for disaster service, accident leave, and parental leave. Article 14 addresses union leave— leave “for the purpose of participating in approved union activities.” -8- work on Thanksgiving Day and/or Christmas Day the Employee will receive pay at the rate of one and half (1½) times their regular straight time rate of pay for all hours worked on those days. In addition, the Employee shall be granted the holiday with pay or an alternative date to be scheduled by the University within forty-five (45) days of the date initially pre-scheduled, provided however that, if all operational needs prevent the rescheduling of the holiday within that ninety (90) day period, the University will reschedule the holiday within six (6) months of the date initially pre-scheduled. Subject to operational needs, the University will make a good faith effort to schedule an employees’ [sic] pre-scheduled or alternative holidays on a mutually agreeable date, however, the employee may be paid at the applicable rate for all hours worked and provided with a regular day’s pay as holiday pay in lieu of being granted another day off.

Section 3 of Article 15, entitled “Termination Payment,” provides: “Employees, who leave their employment at the University for any reason, are entitled to be paid for any unused holiday leave that has been earned as of the date of separation.” Aside from recognizing that University police officers are eligible to earn eleven holidays per year (twelve during a general or congressional election year), neither Article 15 nor any other Article in the MOU specifies how many hours of paid leave officers accrued for each holiday, i.e., how many hours were in a holiday. Article 11 of the MOU, entitled “Grievance Procedure,” outlines the procedures for resolving certain disputes between the Union and the University. In relevant part, Article 11 states: In the event of an alleged violation or disagreement over any of the provisions of this MOU, a bargaining unit employee represented by FOP, which shall be the exclusive employee organization to represent the employees, shall have the right to file a grievance in accordance with Section 13-201 et seq. of the Annotated Code of Maryland, Education Article, a copy of which is set forth below for convenient reference. (Underlining omitted).

Article 11 quotes and incorporates into the MOU ED §§ 13-201 to -9- 13-207. Relevant Statutory Provisions The provisions of the Education Article incorporated into Article 11 of the MOU set forth procedures for addressing grievances. ED § 13-201(c), as incorporated into the MOU, defines a “grievance” as any cause of complaint arising between a classified employee or associate staff employee and his employer on a matter concerning discipline, alleged discrimination, promotion, assignment, or interpretation or application of University rules or departmental procedures over which the University management has control. However, if the complaint pertains to the general level of wages, wage patterns, fringe benefits, or to other broad areas of financial management and staffing, it is not a grievable issue.

ED § 13-203(a) provides for a three-step grievance procedure that is available only “[i]f, following informal discussion with [a] supervisor, a dispute remains unresolved[.]” ED § 13-203(b) describes step one of the grievance procedure, which involves initiation of a complaint followed by an initial conference and a written decision, stating: (1) Step One. Step one is the initiation of a complaint. Grievances shall be initiated within 30 calendar days of the action involved, or within 30 calendar days of the employee having reasonable knowledge of the act, unless these time limits are further delimited as stated in § 13-205 of this subtitle. Appeals within the grievance procedure shall be timed from receipt of the written opinion of management or from when such opinion is due, whichever comes first.

An aggrieved employee or the employee’s designated representative may present the grievance in writing to the department head or chairman or designee for formal consideration. If the grievance is presented to the department head or chairman or designee, within 5 days after the receipt of the written grievance a conference shall be held with the aggrieved or the employee’s designated representative and within 5 days after the conclusion of the conference a decision shall be rendered in writing to the aggrieved or the employee’s designated representative. If the aggrieved employee is not satisfied with the decision rendered at this step, the employee or the employee’s designated representative may appeal in writing to step two within 5 days. - 10 - (2) Both employee and department head or chairman or designee shall continue to review the matter, either privately or with the help of others in the employee’s immediate work unit who are directly involved in the grievance. Each department head or chairman or designee shall use judgment in keeping superiors informed of the status of each grievance and, if necessary, request guidance, advisory committees, or other assistance consistent with departmental policy.

If either the employee or the department head or chairman or designee feels the need for aid in arriving at a solution, the campus personnel department may be requested to provide resource staff or any other available resource personnel may be invited to participate in further discussions. The addition of such participants does not relieve the department head or chairman or designee and the employee from responsibility for resolving the problem. ED § 13-203(c) sets forth step two of the grievance procedure—appeal of the initial written decision—stating: Step Two. The appeal shall be submitted to the president of the constituent institution or the president’s designated representative within 5 days after the receipt of the written decision at step one.

The president or the president’s designated representative shall hold a conference with the aggrieved or the employee’s designated representative within 10 days of receipt of the written grievance appeal and render a written decision within 15 days after the conclusion of the conference. ED § 13-203(d) sets forth step three of the grievance procedure, which involves arbitration or an administrative hearing before an ALJ, stating: Step Three. In the case of any still unresolved grievance between an employee and the constituent institution, the aggrieved employee, after exhausting all available procedures provided by the constituent institution, may submit the grievance to either arbitration or to the Chancellor who may delegate this responsibility to the Office of Administrative Hearings in accordance with Title 10, Subtitle 2 of the State Government Article. In either case, the appeal shall be submitted within 10 days after the receipt of any written decision pertaining to that grievance and issued by the constituent institution.

If the grievance is arbitrated, the parties shall select an arbitrator by mutual agreement. If they are unable to reach a mutual agreement, an arbitrator shall be supplied by the American Arbitration Association by their procedures. Any fees resulting from arbitration are assessed by the arbitrator - 11 - equally between the two parties. The arbitration award is advisory to the Chancellor or administrative law judge, as appropriate, and an additional appeal or hearing may not be considered.

The Chancellor or administrative law judge, as appropriate, shall make the final decision that is binding on all parties. ED § 13-204 provides: A decision may not be made at any step of the grievance procedure that conflicts with or modifies a policy approved by the Board of Regents of the University System of Maryland or with any applicable statute or with any administrative regulation issued under appropriate statutory authority or that otherwise delimits the lawfully delegated authority of University officials unless prior approval has been obtained from the responsible official. The Holiday Leave Dispute In a memorandum to sworn personnel of the University’s police department dated November 7, 2017, the department’s chief, Samuel D. Tress, stated that, effective January 3, 2018, the department would transition from eight-hour shifts to ten-hour shifts.8 Chief Tress explained that each officer would still work forty hours per week, or eighty hours per pay period. The memorandum also explained that the new schedule cycle would run for 49 days (7 weeks) and that, out of the 49 days, an officer would work for 28 days and be off for 21 days.

The change was made pursuant to Article 6, Section 5 of the MOU, which provides that work schedules may be changed by the University at its discretion as needed upon fourteen days’ notice. The memorandum did not mention any adjustment concerning holiday leave or any other form of leave. It is undisputed that the University had the right to make the schedule change; what is at issue is whether the University was required to 8 According to testimony at the hearing before the ALJ, the University made the schedule change to address officer safety, crime trends, and calls for service. - 12 - increase the hours allotted for holiday leave. In a letter to Chief Tress dated January 25, 2018 (after the schedule change went into effect), on behalf of himself and all other members of the Union, Merryman submitted a Step 1 Grievance pursuant to Article 11 of the MOU.

Merryman stated that the University had violated Article 15 of the MOU by failing to credit employees with the appropriate amount of holiday leave. Merryman indicated that, by moving employees from eight-hour shifts to ten-hour shifts, the University had redefined a “workday” as ten hours. Merryman argued that, because the University had exercised its prerogative to increase an employee’s workday from eight hours to ten hours, the University was obligated to credit all holidays and any makeup dates at a rate of ten hours per holiday.9 On behalf of the Union, Merryman requested that the University acknowledge, among other things, that a holiday is defined as ten hours and that any officer who worked on a prescheduled holiday was entitled to ten hours of holiday leave. In a letter to Merryman dated February 7, 2018, at Step 1 of the Grievance procedure, Chad R. Ellis, the Acting Chief of Police, responded that, after consideration, it 9 Merryman explained that, as a result of the transition to ten-hour shifts, if an employee was off on a prescheduled holiday, the employee should be granted ten hours of holiday leave.

But, under the schedule change, if an employee worked ten hours on a prescheduled holiday and was granted a makeup holiday pursuant to Article 15, the employee would be granted only eight hours of holiday leave, and would be required to use up to two hours of another type of leave to be entitled to a day off to make up for the worked holiday. Or if an employee wanted to be off on a scheduled holiday, the employee would be granted only eight hours of holiday leave and would be required to use two hours of another type of leave to have the entire holiday off. Merryman contended that this outcome was illogical, and that holidays should be credited the same number of hours as workdays for all employees. - 13 - had been determined that the Union’s complaint about holiday leave pertained to fringe benefits and staffing, and thus was not a grievable issue under the MOU. In a letter to Mary L. Maher, the Assistant Vice President of Human Resources of the University, dated February 9, 2018, on behalf of himself and all other members of the Union, Merryman submitted a Step 2 Grievance.

In addition to repeating the contentions that he made in his January 25, 2018 letter to Chief Tress, Merryman argued that the dispute was a grievable issue under the grievance procedure set forth in Article 11 of the MOU. Specifically, Merryman asserted that Article 11 indicated that the University and the Union agreed to make any disputes regarding the interpretation or application of the MOU subject to the grievance procedure. Merryman maintained that ED §§ 13-201 to 13-207 merely set forth the procedural requirements for presenting a grievance and did not prohibit “grieving issues regarding the interpretation of the MOU.” In a letter to Merryman dated March 5, 2018, Beth Amyot, Chief Finance Officer and Vice President for Administration & Finance of the University, responded that, per Article 11 of the MOU and ED § 13-201(c), the dispute about holiday leave was not a grievable issue because holiday leave is a fringe benefit. Amyot stated that the University could not “increase the maximum holiday hour accrual authorized by [the University System of Maryland] and the Board of Regents, and as outlined” by the University’s Human Resource website.10 10 Amyot noted, though, that, in response to recordkeeping issues associated with the change to ten-hour shifts, the University would be modifying its recordkeeping procedures as to leave. - 14 - Proceedings before the ALJ On March 15, 2018, the Union filed a Step 3 Grievance with the Office of Administrative Hearings, requesting a hearing before an ALJ.

On April 23, 2018, the University filed with the ALJ a motion to dismiss, arguing that the complaint about holiday leave was not a grievable issue because it pertained to fringe benefits and that, as such, the complaint must be dismissed. The ALJ conducted a hearing on the motion to dismiss. At the hearing, the University’s counsel contended that the complaint about holiday leave was a complaint about the level of fringe benefits. Among other things, the University’s counsel maintained that the amount of fringe benefits in the form of holiday leave is set by the University System of Maryland policy, namely, Policy VII-7.30, and that, if the ALJ were to decide the dispute in the Union’s favor, it would be changing a policy set by the University System of Maryland.

The University’s counsel acknowledged that Policy VII-7.30 addresses holiday leave in terms of days, not hours, but stated that police officers, as State employees, are aware that leave is accrued in hours. The University’s counsel contended that the Union sought to have the ALJ grant its members something (an increase in holiday leave) that the policy does not allow other nonexempt employees.11 The University’s counsel also argued that the change in work schedule did not affect the total number of hours that officers work in a year—forty hours per week or 2,080 hours per year—and that, as such, the change in work schedule did not change the amount of any According to Maher’s testimony before the ALJ at the evidentiary hearing, 11 nonexempt employees are eligible for overtime pay. - 15 - form of leave, including the eighty-eight hours of holiday leave. The University’s counsel pointed out that the schedule change did not change the amount of any type of leave—sick leave, annual leave, personal leave, or holiday leave. By contrast, the Union’s counsel contended that the complaint about holiday leave concerned a disagreement about the interpretation of the MOU and Policy VII-7.30, not a dispute about the general level of benefits, and, as such, presented a grievable issue.

The Union’s counsel argued that a holiday consists of a complete day that an employee has to take off and although an employee accrues “holidays in hours, [] they should accrue it based on their shift scheduled[.]” According to the Union’s counsel, the Union was not asking for more holidays as the Union was not seeking an increase from eleven holidays to, for example, thirteen holidays. The Union’s counsel reasoned that the disagreement concerned “what a holiday is” and that if a workday is ten hours rather than eight hours and officers are receiving eighty-eight hours of holiday leave, then the officers are “now only getting 8.8 days of holiday leave, which is a decrease[.]” On June 7, 2018, the ALJ issued a written ruling denying the motion to dismiss. In agreement with the Union’s counsel, the ALJ determined that the issue raised by the Union was “an issue of contract interpretation,” and was “included in the definition of [a] grievance cited by the University and used in Article 11 of the MOU.” On July 16, 2018, the ALJ conducted an evidentiary hearing on the merits. During opening statements, the Union’s counsel recognized that the University had the right to make the schedule change, but argued that a holiday is a day off, and that a holiday should equate to a workday, which had been changed to ten hours.

The University’s counsel - 16 - contended that the change in the work schedule neither changed the number of hours officers were required to work nor changed the nature of the amount of fringe benefits that officers received. The University’s counsel argued that, like other nonexempt employees of the University, officers continued to receive eighty-eight hours of holiday leave in a non-election year. The University’s counsel asserted that the Union sought to have holiday leave increased to 110 hours, which would be a departure from the University System of Maryland’s policy and would require approval from the Board of Regents. As the sole witness for the Union, among other things, Merryman testified that, after the schedule change but before the Step 2 Grievance decision, a holiday had to be taken in an eight-hour increment and officers “had to find additional two hours somewhere to use.” After the Step 2 Grievance decision, holiday leave was placed into a leave bank and “could be used in any increments [an officer] wanted: two, three hours, ten hours, whatever you decided to take, eight hours.” Merryman testified that the change did not alleviate his concern because, after using eighty-eight hours of holiday leave, officers still needed to use additional hours from other forms of leave “for the ten-hour days to get 110 hours.” Merryman testified that, in the Union’s view, a holiday is a ten-hour day because it is equivalent to a workday.

On cross-examination, Merryman acknowledged that both before and after the schedule change, officers received eighty-eight hours of holiday leave and agreed that the Union was essentially asking the University to give officers ten hours of holiday leave for each of the eleven holidays granted to them. When asked, Merryman acknowledged that other nonexempt employees do not get 110 hours of holiday leave per year. - 17 - As a witness for the University, Chief Ellis, then the Chief of Police, testified that both before and after the schedule change officers worked forty hours per week and 2,080 hours per year. Chief Ellis testified that the schedule change did not affect the amount of holiday leave that officers receive, which is eighty-eight hours of holiday leave. Chief Ellis explained that leave has always accrued and been measured in terms of hours and that an officer’s time sheet reflects how many hours of each type of leave the officer has accrued at any given time.

Chief Ellis testified that, after the schedule change, upon discussions with Human Resources and Merryman, holiday leave had been placed in a leave bank to be used in hourly increments. When asked what an officer would put on a time sheet if the officer was taking,