Prince George's County v. Prince George's County Police Civilian Employees Ass'n

WRIGHT, J. This appeal arises from the Circuit Court for Prince George’s County’s decision to uphold the opinion and award of an arbitrator in favor of appellee, Prince George’s County Police Civilian Employees Association (“PCEA”) against appellant, Prince George’s County (“County”). PCEA and the County are parties to a negotiated collective bargaining agreement (“CBA”) concerning the wages, hours, and other terms and conditions of employment for civilian employees of the Prince George’s County Police Department (“Department”). On December 27, 2012, the arbitrator issued an Opinion and Award sustaining a grievance filed by PCEA challenging the County’s decision to terminate the employment of Marlon Ford, a civilian employee of the Department whose terms and conditions of employment are covered by the CBA. On the bases of the extensive record adduced during three days of “detailed testimony” from a “dozen witnesses,” resulting in a transcript of nearly 1,000 pages, the arbitrator found that the factual record did not support the County’s claim that it had “just cause” to terminate Ford’s employment.

The County challenged the arbitrator’s Order and Award in the circuit court, asserting that the Order and Award should be vacated because the County had met its burden of establishing that this case is within the narrow category of cases in which Maryland Courts may vacate an arbitration award. Specifically, the County claimed that the arbitrator (i) exceeded his authority by independently assessing facts and exercising his own judgment in concluding that the Department lacked “just cause” to terminate Ford’s employment; and (ii) issued an award that is contrary to clear public policy insofar as he found that Ford was entitled to be informed of his right ¹¹³ to have a union representative present during an investigatory interview, when his employer was conducting a criminal investigation. Citing Maryland’s well-settled law that a court will not generally disrupt the fair decision of an arbitrator, the circuit court rejected the County’s arguments. The County then filed this timely appeal.

The County raises the following issues on appeal, which we have reworded for clarity: 1 I. Whether the circuit court erred in failing to vacate the award of the arbitrator when the arbitrator made his own judgments and factual assessments regarding whether the employer had “just cause” to discipline the employee in the context of the CBA?

II

Whether the circuit court erred in failing to vacate the award of the arbitrator when it found it was not a violation of public policy that a governing body may bargain away or compromise the statutory duties of its public safety agency to investigate criminal conduct? We answer the first question in the negative and the second question in the affirmative and thus reverse the arbitrator’s ruling for the reasons explained below. FACTS On May 15, 2011, a detective assigned to the Criminal Investigation Division (“CID”), of the Department reported to her supervisor that her firearm was missing and possibly stolen from the ladies’ bathroom at the Department’s headquarters. An expansive search and investigation was immedi ¹¹⁴ ately initiated by the officer’s fellow CID detectives to search for and retrieve the missing firearm.

In the course of conducting the investigation of the missing firearm, Ford, his friend, Khari Grooms, who was in a volunteer position with the Department for individuals with a strong interest in joining the Department, as well as other civilian employees who were in headquarters at or about the time that the officer’s firearm went missing, were all asked to return to headquarters to be questioned by CID detectives. During the investigation of Ford and Grooms for the missing firearm, they submitted to a voice stress analysis (“VSA”) examination. 2 The results of the VSA examination indicated deception on the part of Ford and Grooms with regard to taking or finding the officer’s missing firearm. May 16, 2011, was an off-day for Ford, but he was called by the Department and asked to report to work. Upon his arrival, Ford’s supervisor told Ford that she needed to speak to him “real quick” and that it would “only take a minute.” Ford was then brought into a room and informed that an officer had misplaced her firearm.

Ford was told that, after he provided a statement, he would be on his way. He provided a written statement at about 4:00 p.m. ¹¹⁵ Instead of being released, Ford was advised of his Miranda 3 rights via the Advise of Rights and Waiver Form by Sergeant Tamer of the sexual assault unit and elected to waive his Miranda rights and provide a verbal statement. Ford was then interrogated for fourteen hours by twelve to fourteen detectives from the homicide, sexual assault, robbery, and child abuse units. During this part of the investigation, the detectives “screamed” and cursed at Ford, took his cell phone away, and told him that “no one’s going anywhere until the gun is found.” Ford was told that he was “under arrest,” and that he would be spending his birthday in jail.

Ford was allowed one meal during the fourteen-hour ordeal, which he was allowed to eat at approximately 4:00 a.m. Ford allowed the Department to search his car and to search a room in his home but asked that he be allowed to alert his sickly grandmother before they searched his home so that she would not be startled when the police arrived. Ford was never given the opportunity to alert his grandmother and both his house and his car were “torn apart” and left in an “atrocious” condition. At no point before or during this interrogation was Ford advised that he had a right to union representation pursuant to Article 8 § C of the CBA between PCEA and the County. 4 Ford was never connected to the missing firearm.

However, during Grooms’s interview, Grooms stated that on several ¹¹⁶ occasions, he was invited to accompany Ford as he drove around in marked and unmarked police vehicles, “pulled traffic stops,” and responded to “calls for service.” Grooms also disclosed that he witnessed Ford using the radio as well as activating the emergency equipment such as LED lights and the air horn. Grooms told the CID detectives that Ford represented, on several occasions, that he was a police officer of the Department, and Grooms referred to Ford as “Officer Ford” during the interrogation because he believed that Ford was a member of the Department. Ford, to the contrary, denied ever driving a marked vehicle. Ford did admit, however, that he had activated emergency equipment on one occasion when he used the air horn to attract the attention of a driver who was driving toward him in a reckless fashion.

Ford also admitted to unauthorized use of the radio while operating one of the unmarked police vehicles. On May 17, 2011, following the CID detectives’ interrogation of Ford and Grooms, a referral was made to the Internal Affairs Division (“IAD”) to initiate an internal investigation with regard to allegations of Ford’s misconduct. Ford was at that time notified in writing that he was being placed on administrative leave pending the internal affairs investigation by the IAD investigator pursuant to the relevant provisions of the CBA. On July 26, 2011, Ford was notified in writing of his Weingarten 5 rights by the IAD investigator. ¹¹⁷ On July 26, 2011, the LAD investigator produced a report of his investigation disclosing his findings and recommendations.

The report recommended thirteen charges against Ford. The IAD commanding officer forwarded the report of the investigation to the Office of the Chief of Police with a recommendation that nine of the thirteen charges be sustained and Ford’s employment with the Police Department be terminated. On August 12, 2011, the Chief issued a Notice of Intent of a Proposed Disciplinary Action against Ford for the nine charges sustained against him. On or about August 26, 2011, PCEA submitted a Response to the Notice of Intent to Terminate Ford to the Chief.

On August 26, 2011, the Chief issued his Notice of Final Disciplinary Action Terminating Ford effective August 29, 2011. On September 12, 2011, the Union timely issued a grievance letter stating that the disciplinary action against Ford was in violation of Article 8 of the CBA between PCEA and the County. Among the mutually agreed upon terms and conditions of employment enumerated in the CBA, Article 8 broadly outlines the situations in which the Department may discipline an employee and, in some detail, describes the disciplinary procedures that must be followed. By its express terms, Article 8 of the CBA directly addresses discipline for administrative wrongdoing and conduct that constitute a “criminal violation[ ]” or is “related to an active criminal investigation.” For example, Article 8 § I states that the County will not initiate disciplinary action against an employee later than ninety days after the County becomes aware of the alleged infraction, but that this ninety day rule shall not apply where the alleged infractions are either “criminal violations” or are “related to an active criminal investigation.” PCEA and the Department began a series of verbal negotiations to determine whether the Chief would be willing to reconsider Ford’s termination.

On February 8, 2012, a representative from the Office of the Chief communicated to PCEA that the Chief would not modify Ford’s termination. ¹¹⁸ Article 9 of the CBA sets forth the procedures for filing a grievance “concerning the application or interpretation of the terms” of the CBA “or a claimed violation, misinterpretation or misapplication of the rules or regulations of the Employer affecting the terms and conditions of employment.” The contract describes a multi-step grievance procedure, the last step of which is for the parties to submit the matter to an arbitrator, who is authorized to “hear and decide any grievance dispute.” With respect to any grievance submitted to an arbitrator, the parties have agreed that “[t]he rules of the American Arbitration Association shall govern the conduct of the arbitration hearing,” and that the “decision of the [arbitrator shall be final and binding on both parties.” On February 16, 2012, PCEA, on Ford’s behalf, invoked its right to pursue a grievance through arbitration. On May 14, 2012, July 31, 2012, and August 1, 2012, both the County and PCEA presented evidence, testimony, and arguments on the merits of the union’s grievance before an arbitrator. On December 27, 2012, the arbitrator issued an Opinion and Award sustaining PCEA’s grievance and vacating the discipline imposed on Ford, with the exception of a 30-day suspension, finding that the termination of Ford’s employment “cannot be supported” on the record adduced at the hearing. The Opinion and Award focused on the County’s failure to prove its case, stating: Almost every aspect of this case raises unanswered questions or is attended by sharply conflicting testimony....

Little purpose would be served by sifting through the many conflicts in the testimony and the written exhibits, most of which would be irreconcilable. The arbitrator also found that the County violated Article 8 § C insofar as it failed to inform Ford that he was entitled to union representation during the May 16, 2011 interrogation. Nevertheless, the arbitrator found that Ford’s conduct was evidence of “bad judgment” and “deserving of discipline.” Weighing all of these factors, the arbitrator’s Order and Award sustained PCEA’s grievance and ordered a “ma[k]e whole” remedy, with the exception of a 30-day suspension. ¹¹⁹ On January 28, 2013, the County field a Petition to Vacate the Award in the circuit court. On July 11, 2013, the circuit court heard oral argument on the County’s Petition to Vacate as well as on a Motion to Confirm the Award filed by PCEA.

The circuit court subsequently issued a Memorandum and Order in which it denied the Petition to Vacate and granted PCEA’s Petition to Confirm the Award. This appeal followed. DISCUSSION A circuit court’s decision to grant or deny a petition to vacate or confirm an arbitration award is akin to an order granting or denying a motion for summary judgment. See Balt.

Teachers Union, Am. Fed’n of Teachers, Local 310, AFL-CIO v. Mayor & City Council of Balt., 108 Md.App. 167, 182 , 671 A.2d 80 (1996); see also Chillum-Adelphi Volunteer Fire Dep’t, Inc. v. Button & Goode, Inc., 242 Md. 509, 517-18 , 219 A.2d 801 (1966). The standard of review is de novo. Walk v. Hartford Cas.

Ins. Co., 382 Md. 1, 14 , 852 A.2d 98 (2004); see Jurgensen v. New Phoenix All. Condo. Council of Unit Owners, 380 Md. 106, 113-14 , 843 A.2d 865 (2004).

Arbitration is favored in the dispute resolution process because “arbitrations are intended to compose disputes in a simple and inexpensive manner, whenever the parties to one have had a full and fair hearing the award of the arbitrators will be expounded favorably, and every reasonable intendment made in its support.” Roberts Bros. v. Consumers’ Can Co., 102 Md. 362, 368 , 62 A. 585 (1905) (citations omitted); see, e.g., Bd. of Educ. of Prince George’s Cnty. v. Prince George’s Cnty. Educators’ Ass’n, Inc., 309 Md. 85, 99 , 522 A.2d 931 (1987) (“It was firmly established as a common law principle in Maryland that mere errors of law or fact would not ordinarily furnish grounds for a court to vacate or to refuse enforcement of an arbitration award.”); Parr Constr. Co. v. Pomer, 217 Md. 539, 543 , 144 A.2d 69 (1958) (noting that although “an award may be open to impeachment for fraud, misconduct, bias, prejudice or mistake, every reasonable intendment supports the validity of the award). ¹²⁰ Both the Court of Appeals and this Court have repeatedly approved the United States Supreme Court’s recitation that arbitrators are “judges chosen by the parties” to hear and decide the issues before them, and that courts will not set aside an arbitration award that represents the honest decision of an arbitrator “after a full and fair” hearing even where there is an error of law or fact: Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally and without appeal. As a mode of settled disputes, it should receive every encouragement from a court of equity.

If the award is within the submission, and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error, either in law or fact. A contrary course would be a substitution of the judgment of the chancellor in place of the judges chosen by the parties, and would make an award the commencement, not the end, of the litigation. Burchett v. Marsh, 58 U.S. 344, 349 , 17 How. 344 , 15 L.Ed. 96 (1854) (cited in Balt. Cnty. v. Mayor & City Council of Balt., 329 Md. 692, 701 , 621 A.2d 864 (1993)); Bd. of Educ. of Prince George’s Cnty., 309 Md. at 98 , 522 A.2d 931 ; Dominion Marble Co., Ltd. v. Morrow, 130 Md. 255, 260 , 100 A. 292 (1917); Roberts Bros., 102 Md. at 368-69 , 62 A. 585 ; Roloson v. Carson, 8 Md. 208, 221-22 (1855); Snyder v. Berliner Constr.

Co., Inc., 79 Md.App. 29, 35 , 555 A.2d 523 (1989). As the Court of Appeals stated in Roberts Bros.: It has been settled by a long line of decisions that, as arbitrations are intended to compose disputes in a simple and inexpensive manner, whenever the parties to one have had a full and fair hearing the award of the arbitrators will be expounded favorably, and every reasonable intendment made in its support. In such cases it is conceded that the court will not look into the merits of the matter and review the findings of law or fact made by the arbitrators, nor substitute its opinion or judgment for theirs, but will require ¹²¹ the parties to submit to the judgment of the tribunal of their own selection and abide by the award. 102 Md. at 368-69 , 62 A. 585 (internal citations omitted). There are, however, narrow circumstances in which a court may vacate an arbitrator’s award.

A court may set aside the judgment of an arbitrator when the party challenging the award is able to demonstrate that the proceedings were tainted by fraud, misconduct, bias, prejudice, corruption, or lack of good faith on the part of the arbitrator. Bd. of Educ. of Prince George’s Cnty., 309 Md. at 100 , 522 A.2d 931 (citations omitted). A court may vacate an award if an arbitrator has made a mistake “so gross as to evidence of misconduct or fraud on his part,” id,, or has “exceeded his authority.” Bel Pre Med. Ctr., Inc. v. Frederick Contractors, Inc., 21 Md.App. 307, 316 , 320 A.2d 558 (1974).

Finally, “an arbitration award which is contrary to a clear public policy will not be enforced.” Bd. of Educ. of Prince George’s Cnty., 309 Md. at 100 , 522 A.2d 931 (citing Amalgamated Transit Union, Div. 1300 v. Mass Transit Admin., 305 Md. 380 , 389 n. 5, 504 A.2d 1132 (1986)). I. ARBITRATOR’S AUTHORITY The County contends that the arbitrator exceeded his authority when he overturned the Police Chiefs determination that there was just cause to terminate Ford. The County avers that the role and authority of an arbitrator is derived directly from the provisions of the contract between the parties, and the relevant portions of the CBA do not provide the arbitrator with the “liberty to act as a super personnel officer” or substitute the factual findings of the employer who conducted the initial investigation of the employee’s misconduct. The County further contends that absent specific language as to the standard of review to be applied by an arbitrator during a just cause termination grievance, the arbitrator must apply an “objective reasonable standard” to the evidence to determine whether the employer had just cause to discipline or terminate the employee. ¹²² PCEA responds that the circuit court correctly found that the arbitrator did not exceed his authority by evaluating the facts to determine whether the County had just cause to terminate Ford’s employment.

PCEA contends that the plain language of the CBA gave the arbitrator authority to “hear,” “decide,” and issue a “final and binding” determination on whether the County had “just cause” to terminate Ford’s employment. PCEA also avers that courts have universally interpreted language similar to the CBA to give arbitrators de novo authority to review “just cause” disciplinary determinations. The CBA between the County and the PCEA affords the PCEA the right to bring a grievance “concerning the application or interpretation of the terms of th[e] Agreement or a claimed violation, misinterpretation or misapplication of the rules or regulations of the Employer affecting the terms and conditions of employment.” CBA Art. 9 § 9.1. The CBA sets out a multi-step grievance procedure.

CBA Art. 9. Within ten days after the event giving rise of the grievance, the employee’s PCEA delegate may discuss the grievance with the Division Head and the Division Head will attempt to adjust the matter and respond orally to the employee within two days. CBA Art. 9 § 9.1. If the grievance is not settled through the discussions in Step 1 of the grievance process, a written grievance may be filed, including the specific relief sought, and presented to the Chief of Police.

CBA Art. 9 § 9.2. Upon receipt of a written grievance, a meeting will be held within ten days where the Chief of Police meets with the employee, the PCEA President and the employee’s PCEA delegate to render a decision in writing no later than ten days after the meeting. Id. If the grievance is not settled in Step 2, the grievance may be moved to a written appeal, signed by the aggrieved employee and the PCEA President or the employee’s PCEA delegate.

Id. The final step is to submit the dispute to an arbitrator who is “appointed to hear and decide [the] grievance” and whose decision “shall be final and binding on both parties.” CBA Art. 9 §§ 9.3(A)(4), 9.3(B). Thus, as it relates to the County’s application of the “just cause” standard ¹²³ contained in Article 8 § A, the role of the arbitrator is to “hear” and make a “final and binding” decision as to whether the employer had “just cause” to discipline an employee. The County asserts that the arbitrator’s role in hearing a grievance over a “just cause” termination is far more limited.

Under the County’s theory, the arbitrator’s role is “quasi-appellate,” or limited to determining whether the County had an “objectively] reasonable” basis for making such a decision, without evaluating the facts of the dispute from his “subjective point of view.” We agree with the PCEA that this theory is inconsistent with the CBA. Again, Article 9 of the CBA provides that when the parties have a “dispute concerning the application or interpretation of terms” of the contract, an arbitrator may be appointed to “hear and decide” the dispute and render an “final and binding” decision. A clear reading of this language is that the parties have agreed that the arbitrator had the authority to act in the manner that he did. The County argues that the “essence” of the relevant provisions can only be interpreted to give the arbitrator the authority to determine whether the County’s determination was “objectively reasonable.” The County does not explain what it means by an “objectively reasonable” standard — whether it means that an arbitrator should affirm the County’s discipline determination if the decision was based on substantial evidence or was not arbitrary and capricious or was not clearly erroneous, or some other standard altogether.

The County also fails to cite precedent or support for its position that there is an “objectively reasonable” standard or that the arbitrator should defer in anyway to the County’s factual findings. Of course, the parties could have agreed that an arbitrator’s role is to serve some other function. For example, “[i]f the employer wanted the automatic right to discharge an employee for violation of certain company rules or for the commission of certain crimes, ... it had the opportunity to seek such an explicit exclusion from the general arbitration clause when the collective agreement was negotiated, as it may do when the ¹²⁴ collective agreement expires.” Amalgamated Transit Union, 305 Md. at 388 , 504 A.2d 1132 (quoting Local 453, Int’l Union of Elec., Radio & Machine Workers v. Otis Elevator Co., 314 F.2d 25 , 28 (2d Cir.1963)). In the present case, however, the parties agreed that the role of the arbitrator was to make a “final and binding” decision based on the “application or interpretation” of the “just cause” language of the CBA.

Further, not only did the parties agree to give the arbitrator “final and binding authority,” but they also affirmatively adopted the rules of the American Arbitration Association to “govern the conduct of the arbitration hearing.” CBA Art. 9 § 9.3(A)(4). Those rules gave the arbitrator the authority to determine the admissibility, the relevance, and materiality of the evidence offered and to exclude evidence deemed by the arbitrator to be cumulative or irrelevant. 6 Courts have consistently interpreted similar language to give arbitrators de novo authority to review “just cause” disciplinary determinations. The County has not identified a single case in Maryland, or anywhere else, which holds or indicates that the role of a arbitrator in hearing and deciding a grievance is to ask whether the employer’s decision was “objectively reasonable” and to defer to the employer’s own factual determination. On the contrary, both the Court of Appeals of Maryland and the United States Supreme Court have consistently found that the role of an arbitrator is to make factual determinations based on evidence presented.

For example, in Amalgamated Transit Union, 305 Md. at 381-84 , 504 A.2d 1132 , the Court of Appeals reviewed a challenge to an arbitrator’s determination that the MTA terminated an employee’s employment without just cause to do so. 305 Md. at 381-84 , 504 A.2d 1132 . As is the case here, the parties had a previous agreement establishing that the decision of the arbitrator would be “final and binding.” Id. at 384 , 504 A.2d 1132 . In holding that the arbitrator had the authority to fashion a less severe remedy than the discipline ¹²⁵ imposed by the MTA, the Court of Appeals explained that an arbitrator has “broad discretion” to fashion an award that is “appropriate to the facts as found by the arbitrator.” Id. at 390 , 504 A.2d 1132 (emphasis added). The Court of Appeals’s holding in Amalgamated Transit Union adopted the reasoning of the Second Circuit in Local 453, supra, 314 F.2d 25 , which explained the rationale for courts to afford deference to an arbitrator’s award.

In Local 453, the Second Circuit made clear that because the parties “bargained for the decision of the arbitrator” on whether the employee’s conduct “constituted ‘just cause’ for the discharge, the parties are bound by it, even if it be regarded as unwise or wrong on the merits.” Local 453, 314 F.2d at 28. The basic principle that courts should uphold an arbitrator’s opinion has been reaffirmed by Maryland Courts repeatedly. See, e.g., Balt. Cnty., 329 Md. at 701 , 621 A.2d 864 (“at common law, courts generally deferred to the arbitrator’s findings of fact and applications of law”); Bd. of Educ. of Prince George’s Cnty., 309 Md. at 100 , 522 A.2d 931 (generally, “arbitration awards will not be vacated for errors of ... fact.”); Balt.

Teachers Union, 108 Md.App. at 181 , 671 A.2d 80 (referencing the role of the arbitrator in making “findings of fact”); Int’l Ass’n of Firefighters, Local 1619 v. Prince George’s County, 74 Md.App. 438, 446-47 , 538 A.2d 329 (1988). Citing United Paperworkers Int’l Union, AFL-CIO v. Mis-co, Inc., 484 U.S. 29 , 108 S.Ct. 364 , 98 L.Ed.2d 286 (1987) and Towson Univ. v. Conte, 384 Md. 68 , 862 A.2d 941 (2004), the County asserts that its proposed “objectively reasonable” standard is consistent with Federal and Maryland case law. In Misco, the United States District Court for the Western District of Louisiana vacated the arbitrator’s award on grounds that the arbitrator’s award was contrary to public policy, and the Court of Appeals for the Fifth Circuit affirmed. 484 U.S. at 34-35 , 108 S.Ct. 364 . The United States Supreme Court, however, reversed, noting that in response to the employer’s alternative argument that the arbitrator made “erroneous findings” of fact, “it is the arbitrator’s view of the facts and meaning of the contract” that the parties have ¹²⁶ agreed to accept, and that “improvident, even silly, factfinding ... is hardly a sufficient basis” for a court to disregard the decision of an arbitrator “appointed by the parties.” Id. at 36-39 , 108 S.Ct. 364 ; see also id. at 38 , 108 S.Ct. 364 (“To resolve disputes about the application of a collective bargaining agreement, an arbitrator must find facts and a court may not reject those findings simply because it disagrees with them.”).

At no point does Misco discuss, apply, or define an “objectively reasonable” standard of review. In fact, Misco affirms the arbitrator’s role as a fact-finder and reinforces the deference courts should grant an