Prince George's County v. American Federation of State, County & Municipal Employees

Rodowsky, J., delivered the opinion of the Court. Presented here is the narrow issue of whether the Prince George’s County Public Employees Relations Board (PERB) exceeded its jurisdiction in a hearing on unfair labor practice charges by ordering Prince George’s County, through its officers, formally to execute and promptly to transmit to the County Council a collective bargaining agreement which PERB found to have been agreed to by county and union negotiators and to have been approved by the County Executive. We find no jurisdictional defect. The Charter of Prince George’s County, Maryland, Article IX, § 908, grants to county employees the right to organize and bargain collectively.

That charter section directs the County Council to provide by law a labor code which shall ³⁹¹ include, inter alia, "definitions of and remedies for unfair labor practices.” Prince George’s County Code (1979), subtitle 13A, §§ 13A-101 through 13A-116 comprise the Labor Code. 1 In February 1979 five locals of the American Federation of State, County and Municipal Employees (AFSCME), which are members of Council 67, began contract negotiations with the County. Each local had an existing labor agreement which expired June 30,1.979. The objective of the multi-local bargaining was to establish a master agreement containing uniform provisions applicable to all bargaining units, with addenda relative to issues specific to each local. Chief negotiator for the union was Paul H. Manner, area representative for Prince George’s County.

The executive director of Maryland Council 67 was Ernest Crofoot. From about March 14,1979, the chief negotiator for the County was Allen G. Siegel, a private attorney. He shared negotiating responsibilities with Joseph C. Fagan who in January of 1979 had become director of labor relations for the County. Throughout the relevant period the County Executive has been Lawrence J. Hogan, whose chief administrative officer has been Kenneth Duncan.

Section 102 (g) of the Labor Code provides that the term "employer” means "the County Executive and any individual who represents him or acts in his interests in dealing with employees ... or any person acting as an agent of said governmental body.” Under § 109 (a) the "County Executive, or his designated authorized representative(s) shall represent the employer in collective bargaining ....” 2 ³⁹² In the course of the bargaining, as an issue was resolved by the negotiators, the provision was reduced to writing and the negotiators signed it. Under the agreed bargaining ground rules such items were not open for later discussion except by mutual consent. No new contract was reached by the expiration date of the then contracts. Bargaining continued.

Resort was had to federal mediators. The impasse procedures of the Labor Code were invoked. On December 20.1979 the Impasse Panel certified pursuant to Labor Code, § 112 (a) (2), that all appropriate impasse procedures had been exhausted. This is one of the steps preceding a strike.

The parties did return to the bargaining table on February 13, 1980. By about 5:00 p.m. that day, the product of the session was reduced to a two-page, handwritten document (the "tentative agreement”). It was signed for the County by Mr. Siegel and for the union by Mr. Manner and another. As a result of the rejection by the County Executive of the tentative agreement, the union on February 19, 1980 filed unfair labor practice charges with PERB against the County.

These charges were heard by the chairman of the Unfair Labor Practice Panel on March 4, 5 and 6, 1980. The thrust of the County’s defense was that its negotiators were not authorized finally to agree to the tentative agreement, that it was subject to final approval by the County Executive, and that he was therefore free to reject it. On March 19.1980 the hearing officer rendered his findings of fact and conclusions of law in which he held the County to have committed a number of violations. ³⁹³ We now turn to the more significant fact findings of the hearing officer. 3 On February 12,1980, Joseph C. Fagan . .. had a "private” meeting with Paul H. Manner .... On that date the parties worked out a general outline of what both sides thought they could successfully agree to and although Fagan did not check with the County Executive he felt that what the union was willing to agree [to] was within the guidelines set by the County Executive ....

At 2:00 p.m. on February 13, 1980, both parties met, with their full negotiation teams in attendance .... Various proposals and counter-proposals were made, with the County team finally caucusing, as Fagan and Siegel said they were going to the "boss,” and that they thought they could sell the entire package. Fagan testified that they tried unsuccessfully to reach the County Executive but nevertheless when the County Negotiators came back 25-30 minutes later, Siegel came in with a smile on his face, reached his hand out, said "We have an agreement,” and shook Manner’s hand. [Emphasis added.] [Thereupon the "tentative agreement” was signed.] About 9:00 p.m. Fagan was advised by Kenneth Duncan ... that the County Executive would not agree to the Tentative Agreement.

About 11:30 p.m. Siegel called Manner and indicated that "we have a problem,” explaining that the County Executive was enraged over a newspaper article in The Washington Star that day, February 13, 1980, in which the Chairman of the County Council, a political rival, criticized the County Executive and ³⁹⁴ which,» in the view of the County Executive, made it appear that the settlement reached was forced by the County Council. To offset this impression, Siegel suggested that the parties meet with a Federal mediator and arrive at the same agreement already reached but which would be attributed to the efforts of the mediator, which would take the credit away from the County Council. Manner rejected the proposal.

Also included in the late night phone calls was an exchange between Siegel and Fagan that they should try to get some kind of a statement from AFSCME which would deal with the County Executive’s concerns about the involvement of County Council and would help put "salve on the wounds” of the County Executive. This attempt ... at some point gained Duncan’s approval. On that same evening [Duncan called Crofoot]. Duncan similarly told Crofoot how The Star article sent the County Executive into a fury, repeated the concern of the County Executive that it had appeared that he had been forced to the bargaining table by the pressure of the County Council, and stating "no way is he (Hogan) ever going to agree to a contract if the County Council... gets any credit for it.” At no time did Duncan ever say that the County Executive had any problem with the tentative agreement ....

On the morning of February 14, Siegel called Crofoot... and suggested that they meet to prepare a statement. Crofoot assented and upon arriving at a designated restaurant was presented with a typed press release which, when Fagan arrived, was being modified by Siegel.... Siegel told Crofoot "you sign this and I think we can get the contract.” Although Crofoot refused to criticize [the] County Council... a statement was finally agreed upon. No attempt was made to negotiate any new contractual provisions.

However, when Siegel reported by ³⁹⁵ phone to Duncan, and then told Crofoot to talk to him, Duncan informed Crofoot "[N]o statement whatever would salvage the thing now, and . .. [the County Executive] is sitting there now picking the contract apart____” [No joint county-union press release was issued.] In his opinion the hearing officer identified and resolved, "Major Disputed Areas of'Fact’.” One of these was the issue, "Did the County Executive Approve the Tentative Agreement?” He concluded that "the evidence indicates that the County Executive must have given his negotiators his oral approval of what he understood they agreed to.” 4 The ³⁹⁶ hearing officer further concluded "from the evidence, that the agreement reached earlier on February 13, 1980, would not have been rejected by the County Executive had the article in The Washington Star not appeared that day.” He found the County had violated, inter alia, § 113 (a) (5) of the Labor Code ("refusing to bargain collectively in good faith ...”); Labor Code, § 114 (c) states that "[i]f upon the preponderance of the testimony taken the Panel shall be of the opinion that any person named in the complaint has engaged in ... an unfair labor practice, then the Panel shall ... issue ... an order requiring that he cease and desist from such unfair labor practices and to take such affirmative action, including reinstatement with or without back pay, as will effectuate the policies of this law.” On this phase of the case, the hearing officer stated that "[i]n view of the fact, that it has been ruled herein that the County Executive both directly and indirectly, through his agents, caused an agreement to be approved and where his agents may legally submit the contract to County Council on his behalf, no further discussion of the PERB’s powers are needed.” The PERB order, directed to "Prince George’s County, through its officers, agents, representatives, negotiators, attorneys, successors and assigns” provided in part that they shall: Take the following affirmative action ... 1. Formally execute and transmit promptly to County Council the collective bargaining agreement... that was agreed to by the County and AFSCME negotiators on February 13, 1980, and subsequently ratified by the AFSCME membership on February 18, 1980. Such legislation as may be needed to effectuate said collective bargaining agreement shall be ³⁹⁷ timely drafted and submitted to County Council in order to facilitate the implementation of that agreement.1 5 1 Under Labor Code, § 114 (e) the findings of the Unfair Practices Panel "shall be conclusive and binding,” unless a petition for relief is timely filed with the Circuit Court for Prince George’s County and "unless said Court finds that the Panel’s decision or order was not supported by substantial evidence.” Of critical significance to the scope of review here is the absence of any statutory provision conferring a right of appeal from the determination of the Circuit Court for Prince George’s County in such an administrative appeal from the Unfair Labor Practice Panel of PERB. The County appealed the PERB order to the circuit court.

The petition in support of appeal included the assertion that the evidence was insufficient to support PERB’s conclusion that the County Executive had approved the tentative agreement. In an opinion from the bench, the circuit court found that "there is substantial evidence to support the conclusion^] reached by the hearing examiner in his March 19, 1980 Order,” except as to an award in favor of the union of counsel fees. An appeal by the County was noted to the Court of Special Appeals. Certiorari issued on the union’s petition prior to consideration by the intermediate appellate court.

What is the scope of our review? Appellate jurisdiction ordinarily is " 'delimited by statute’.” Estep v. Estep, 285 Md. 416, 422 , 404 A.2d 1040, 1043 (1979) (quoting Peat & Co. v. Los Angeles Rams, 284 Md. 86, 90 , 394 A.2d 801, 803 (1978); see Md. Const. art. IV, §§ 14, 14A. Maryland Code (1974, 1980 Repl.

Vol.), § 12-302 (a) of the Courts and Judicial Proceedings Article provides: Unless a right of appeal is expressly granted by law, § 12-301 [Right to Appeal From Final Judgments of ³⁹⁸ a Circuit Court] does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of the District Court, an administrative agency or local legislative body. This Court has "[jurisdiction to review a case or proceeding pending in ... the Court of Special Appeals in accordance with Subtitle 2” of Title 12 of the Courts Article. § 12-307 (1). Section 12-201 of the Courts Article authorizes this Court to grant certiorari "in any case or proceeding pending in ... the Court of Special Appeals upon appeal from a circuit court . .. .” (emphasis added). The County recognizes that there is no statute which confers a right to appeal the PERB order beyond the circuit court level.

Hence, under the circumstances of this case the scope of appellate review by this Court under the writ of certiorari which we issued to the Court of Special Appeals is limited to the extent to which the intermediate appellate court could have reviewed the order of the Circuit Court for Prince George’s County which affirmed the PERB order. Despite the absence of a statute conferring the right to appeal, a limited review by way of appeal may nevertheless be premised upon an exception to § 12-302 (a)’s prohibition. The County invokes that exception. It has long been recognized that if a circuit court acts in the exercise of a special judicial review jurisdiction, from which no right of appeal is conferred, appellate review is available to determine whether the circuit court acted without having lawfully acquired jurisdiction or whether it exceeded the authority conferred upon it.

E.g., Urbana Civic Ass’n v. Urbana Mobile Village, Inc., 260 Md. 458 , 272 A.2d 628 (1971); Johnson v. Bd. of Zoning Appeals, 196 Md. 400 , 76 A.2d 736 (1950); Employment Security Bd. v. Spiker, 194 Md. 351 , 71 A.2d 299 (1950); Lambros v. Brown, 184 Md. 350 , 41 A.2d 78 (1945); Stephens v. Mayor and Council of Crisfield, 122 Md. 190 , 89 A. 429 (1914); Hough v. Kelsey, 19 Md. 451 (1863); Abbott v. Administrative Hearing Bd., 33 Md. App. 681 , 366 A.2d 756 (1976), cert. denied, 280 Md. 727 (1977). 2 J. Poe, Pleading and Practice § 826, at 798 (5th ed. ³⁹⁹ 1925). The review sanctioned by this exception confers authority to consider not whether the trial Court rightly decided but whether it had the right to decide, what it did decide. If it had the right to decide what it did decide then, though its decision be, in point of fact or of law, erroneous it cannot be reviewed, because the statute has conferred no power upon [the appellate court] to sit in review of such a judgment. So the ultimate question is, were the things complained of and decided below, things which the [circuit] Court had jurisdiction to decide. [N.Y. Mining Co. v. Midland Mining Co., 99 Md. 506, 512 , 58 A. 217, 220 (1904).] Thus, this Court has undertaken to review and reverse the judgment of the circuit court in an attempted administrative appeal where no statute authorized an appeal to that court from the decision of an administrative agency, Urbana Civic Ass’n v. Urbana Mobile Village, Inc., supra; Employment Security Bd. v. Spiker, supra, and where the circuit court in a de novo appeal from a justice of the peace failed to acquire personal jurisdiction of the defendant because no summons was issued against it.

Smith Premier Typewriter Co. v. Westcott, 112 Md. 146 , 75 A. 1052 (1910). See also Close v. Southern Md. Agr. Asso., 134 Md. 629 , 108 A. 209 (1919) (circuit court reversed where statute authorizing it to issue licenses determined to be unconstitutional and void). In contrast to the cases above mentioned, this Court has often reviewed the merits of a jurisdictional objection but dismissed the appeal or affirmed the lower court, after determining that it had jurisdiction over the subject matter or that it did not exceed the authority conferred upon it by statute.

See, e.g., Johnson v. Bd. of Zoning Appeals, supra; Bd. of Medical Examiners v. Steward, 203 Md. 574 , 102 A.2d 248 (1954); Montgomery Ward & Co. v. Herrmann, 190 Md. 405 , 58 A.2d 677 (1948); Lambros v. Brown, supra; Stephens v. Mayor and Council of Crisfield, supra; Wilmer v. Mitchell, 122 Md. 299 , 89 A. 612 (1914); Josselson v. Sonneborn, 110 ⁴⁰⁰ Md. 546, 73 A. 650 (1909); Rayner v. State, 52 Md. 368 (1879); Orme v. Williams, 47 Md. 552 (1878); Hough v. Kelsey, supra; Wilmington & Susquehanna R.R. v. Condon, 8 Gill & J. 443 (1837). The Court of Special Appeals has similarly applied the rule. Abbott v. Administrative Hearing Bd., supra; American Ambulance & Oxygen Service v. Mayor and City Council of Baltimore, 31 Md. App. 432 , 356 A.2d 580 (1976); Prince George’s County v. Fahey, 28 Md. App. 312 , 345 A.2d 102 (1975). In its brief as supplemented by oral argument, the County advances three general points why it says jurisdiction was exceeded.

All are aimed at the portion of the PERB order directing the County formally to execute the agreement for transmittal to the Council. It is contended PERB exceeded its jurisdiction because (1) there was no agreement to enforce; (2) even if an agreement existed, PERB had no power under the Labor Code to order that it be signed; and (3) absent approval by the County Executive acting "officially,” a finding of approval by him violates the Prince George’s County Charter by invading the discretion inherently reserved in