Walker v. Department of Human Resources

⁴⁰⁹ WIENER, Judge. Title 12 of the State Personnel and Pensions Article of the Maryland Code (SPP) sets forth a grievance procedure for most Executive Branch State employees. The question before us is whether that procedure is available to resolve the particular kind of complaint filed by appellants, who are employed by the Baltimore City Department of Social Services (BCDSS), a unit of the State Department of Human Resources (DHR). An administrative law judge, acting for the State Department of Budget and Management (DBM), found that the statutory grievance procedure was not applicable and dismissed their complaints.

On judicial review, the Circuit Court for Baltimore City affirmed that decision. We granted certiorari to consider the issue and shall affirm the judgment of the Circuit Court. BACKGROUND The Statutory and Contractual Framework Subject to certain exceptions, SPP § 12-102(a) makes the grievance procedure set forth in title 12 of the article applicable to all employees in the State Personnel Management System within the Executive Branch. One of the exceptions, stated in § 12-102(b)(6), is that the title does not apply to an employee “who is subject to a collective bargaining agreement that contains another grievance procedure.” Section 12-103(a) broadly permits an employee to present a grievance free from coercion, discrimination, interference, reprisal, or restraint, and § 12-103(b) states that, unless another procedure is provided for by SPP, that grievance procedure is the exclusive remedy through which a non-temporary employee in the State Personnel Management System “may seek an administrative remedy for violations of the provisions of this article.” A “grievance” is defined in § 12-101(b) as a dispute between an employee and his/her employer about the interpretation of and application to the employee of “a personnel policy or regulation adopted by the Secretary [of Budget and Management]” or “any other policy or regulation over which ⁴¹⁰ management has control.” That definition is critical to our decision.

With certain exceptions, §§ 12-201 through 12-205 create' a three-step procedure for resolving grievances. Step 1, provided for in § 12-203, is the filing of a written grievance with the employee’s “appointing authority” within 20 days after (1) the occurrence of the alleged act that is the basis of the grievance, or (2) the employee first knew or should have known of that act. Within 10 days after receiving the grievance, the appointing authority, through its designee, is required to confer with the employee and attempt to resolve the grievance, and within 10 days after that conference, to issue a written decision in which any relief permissible under § 12-402(a) may be awarded. That relief is limited to restoration of rights, pay, status, or benefits that the employee otherwise would have had if the contested policy, procedure, or regulation had been properly applied.

If the employee is unhappy with the result of Step 1, the employee or the employee’s representative may, within 10 days after receiving the Step 1 decision, move to Step 2, which is an appeal to the head of the employee’s principal unit, or that person’s designee. See § 12-204. Within 10 days, that person must review the grievance record, confer with the employee, and attempt to resolve the grievance. The unit head must render a written decision within 10 days after the conference.

Step 3, set forth in § 12-205, is an appeal to the Secretary of Budget and Management, which must be taken in writing by the employee or his/her representative within 10 days after receipt of the Step 2 decision. If the Secretary does not concur with the Step 2 decision, he/she must first attempt to reach an agreeable and binding settlement, and, if that is unsuccessful, refer the grievance to the Office of Administrative Hearings (OAH) for a contested case hearing and final administrative decision under the Administrative Procedure Act (State Government Article, title 10, subt. 2). In 1999, the General Assembly enacted legislation intended to supersede an Executive Order that had previously been ⁴¹¹ issued by the Governor (Executive Order 01.01.1996.13) and, by statute, establish limited collective bargaining rights for State Executive Branch employees. See 1999 Md. Laws, ch. 298.

It achieved that objective by repealing existing provisions in title 3 of SPP that called for employee/management teams in each of the principal units of the Executive Branch, and replacing those provisions with a new title 3 dealing generally with collective bargaining. Subject to certain exceptions and limitations, the new law gives Executive Branch employees the right to form, join, and participate in employee organizations and to engage in “other concerted activities for the purpose of collective bargaining” (or to refrain from doing so) and, without the intervention of such an organization, to “discuss any matter with the employer.” § 3-301. The law provides for the creation of bargaining units and the election of exclusive representatives for employees in those units, and it sets forth procedures for the negotiation of a “memorandum of understanding” (MOU). With certain exceptions, § 3-502 provides that collective bargaining shall include “all matters relating to wages, hours, and other terms and conditions of employment.” One of the caveats to that broad scope is that the employer is not required to negotiate on any matter that is inconsistent with applicable law but may negotiate and reach agreement on such matters, so long as it is understood that the agreement as to those matters cannot become effective unless the applicable law is amended by the General Assembly.

An MOU must be in writing and ratified by the Governor. It may not be for less than one year or for more than three years. § 3-601. Appellants, Donna Walker, Ravital Shalev, and Michelle Moore-Powell, are within the category of employees covered by the title 12 grievance procedure. They are also covered by an MOU that was entered into by the State and Council 92 of the American Federation of State, County, and Municipal Employees (AFSCME) on June 7, 2000, and that was to remain in effect until June 30, 2002.

Article 30 of that MOU provides a dispute resolution procedure. Using the terms “complaint” and “dispute” rather than “grievance,” the Article ⁴¹² sets forth a four-step procedure for resolving disputes “concerning the application or interpretation of the terms of this MOU.” That procedure differs in two principal respects from the grievance procedure established under title 12 of SPP, one of which is critical here. Step 1, which must be triggered within 15, rather than 10, days after the event giving rise to the complaint (or the time the employee should reasonably have known of its occurrence), involves a discussion with the employee’s immediate supervisor. The supervisor must attempt to resolve the dispute and respond orally within three days.

Initial resort to the immediate supervisor is not expressly provided for in the statutory grievance procedure; that is one of the differences, but not an important one in this case. Step 2, which must be requested within seven days after receiving the supervisor’s response, involves a written complaint to the appointing authority, who must meet with the employee and the union representative and respond in writing within 20 days. Other than the time limits, that is essentially Step 1 of the statutory grievance procedure. If the complaint is not resolved at Step 2, Step 3 may be generated by a written complaint filed with the head of the principal unit, unless that person is also the appointing authority.

The unit head must also meet with the employee and the union representative and has 20 days to render a written decision. Step 3 of the MOU procedure is equivalent to Step 2 of the grievance procedure. Step 4 is quite different from the final stage of the grievance mechanism which, as noted, involves an appeal to the Secretary of Budget and Management and a possible contested case hearing before an Administrative Law Judge. If an MOU complaint is not resolved at Step 3, AFSCME may, within 30 days, invoke a fact-finding procedure involving the Federal Mediation and Conciliation Service (FMCS).

If that procedure is invoked, FMCS sends the parties a list of seven fact-finders, from which, either by agreement or sequential strikes, one person is selected. The fact-finder is to resolve “all questions related to the procedure.” If either side disagrees with the fact-finder’s decision, ⁴¹³ an appeal may be taken to the State Labor Relations Board, an entity within DBM that was created by the 1999 legislation. SPP § 3-208 authorizes the Board to investigate possible violations of title 3 or “any other relevant matter” and to hold contested case hearings “whenever necessary for a fair determination of any issue or complaint under this title or a regulation adopted under it.” Section 3-210 provides that, if a person fails to comply with an order issued by the Board, a member of the Board may “petition the circuit court to order the person to comply with the Board’s order.” It is this Step 4 procedure that is important here. OAH has no jurisdiction under the MOU procedure.

If there is to be a contested case hearing, that hearing is conducted by the State Labor Relations Board, created by the General Assembly for that express purpose, among others. Nature of the Grievance in This Case Appellants are classified as Family Services Case Workers II. As noted, they are employed by BCDSS, a unit of DHR. BCDSS constitutes their appointing authority; DHR is the “principal unit.” The record shows that they were part of Family Preservation Unit D, although they refer to their unit as the “PDE Unit,” an acronym that, from the record before us, we are unable to decipher.

Their positions are regarded as entry level ones, in which they provide intensive casework services to families. See COMAR 07.02.01.05 for a description of the kinds of continuing services provided to families. The unit head was one Barbara Terry who, they said, required them to respond to calls from their clients 24 hours a day, seven days a week. On May 31, 2001, appellants filed nearly identical grievances under the title 12 grievance procedure, complaining of “PDE Unit concerns regarding the supervisor who has caused many problems in the working environment” and alleging that Ms. Terry “violates their employee rights by using unfair labor practices and violates the agency’s policies and procedures.” Attached to the Appeal and Grievance Form was a document entitled “PDE Group Grievance,” which listed in some greater ⁴¹⁴ detail a whole range of complaints about Ms. Terry and the administration of the unit.

All of those complaints save .one were resolved at Step 1. The one complaint not so resolved concerns their demand for substantial retroactive “standby” pay. It appears that, prior to the signing of the MOU, DHR had a “practice” of some sort, not reflected in any regulation and not fully described in this record, of paying $5.15/hour to employees who served in an “on call status.” Art. 6 of the MOU dealt with that and with compensation for other types of extra-work week services. Some explanation is required.

Art. 6, § 2 of the MOU defined the “administrative workweek” as beginning at 12:01 a.m. on Wednesday and ending at midnight the following Tuesday. With certain exceptions not apparently relevant here, Art. 6, § 3 defined the “standard workweek” as eight hours/day, five days/week, Monday through Friday. Section 7 of Art. 6 defined “work time” as including time during which the employee was “on duty” at either the employee’s principal job site or at a remote location as part of the State’s Telecommuting Program. That included time the employee is “on the employer’s premises and is on call and waiting for work,” and time that the employee is “not on the employer’s premises, but is on call and waiting for work, and the employee’s personal activities are substantially restricted.” Section 9, captioned “Call-Back Pay,” provides that employees who are “called to report to work” on a regular day off or who have been “recalled to work” after having left the employer’s premises, are entitled to a minimum of one hour of pay plus travel time.

Section 11 of Art. 6 deals with “Stand-By Pay.” It provides, first, that employees are entitled to stand-by pay, at the regular or overtime rate, as applicable, “if required to remain on the Employer’s premises or so close thereto that he/she cannot use the time effectively for his/her own purposes.” It provides further that an employee who is not required to remain on the employer’s premises “but is merely required to leave word at his/her home or with the Employer where ⁴¹⁵ he/she may be reached is not working while on call.” Finally, § 11 states: “[Department of Human Resources] shall continue the current practice of paying $5.15 per hour to employees who serve in an ‘on call status’ through June 30, 2000. Such employees will be paid their regular or overtime compensation, as appropriate, when called to work. In February of 2000, the Employer shall negotiate the continuation or modification of this on call payment practice. Any changes will be implemented no sooner than July 1, 2000.” 1 The record before us does not give any further details with respect to this benefit-when, for this purpose, a person is in an “on call” status and for how long; nor does it indicate whether, following any negotiations that may have occurred in or after February, 2000 (four months prior to the signing of the ⁴¹⁶ MOU), any changes were made to the practice.

Indeed, the greater mystery is that, as the MOU was not signed until June 7, 2000, and the requirement in Art. 6, § 11 to continue the current practice lasted only to June 30, 2000 — a period of 23 days — the requirement set forth in that section appears to have expired long before any of the grievances were filed. In the attachment to their grievance, appellants asserted that Ms. Terry had informed them, in a variety of ways, that the PDE Unit was an “intensive' 24 hour, seven days a week service,” and that one of them, Ms. Shalev, had been admonished by Ms. Terry for not responding to a call at 10:00 one night about one of her cases, while she was at a sports bar watching a game. Because they were required “to be ready, willing, and able to react to any situation at any given moment after our standard workday,” they claimed that they “have been working an additional 64 hours per week, without pay or compensation,” and they demanded additional pay, at the rate of $5.15/hour, for an additional 64 hours/week back to the time they joined the PDE Unit. Ms. Moore-Powell, who joined the unit in July, 1999, sought an additional $329.66 for 104 weeks, or $34,282; Ms. Walker sought the same weekly amount for 44 weeks, for a total of $14,505; and Ms. Shelev, claiming 24 weeks of entitlement, sought $7,911. 2 Those grievances were expressly based on the alleged violation of Art. 6, § 11 of the MOU, and not on any policy or regulation of DHR or DBM. 3 ⁴¹⁷ The Step 1 proceeding was a conference with designees of BCDSS, the appointing authority.

They recognized that the grievance was based on the two basic provisions of MOU Art. 6, § 11 — that DHR would continue their policy of paying $5.15/hour to employees in an “on call” status, and that employees were entitled to stand-by pay if they are required to remain on the employer’s premises or so close as to be unable to use the time for their own purposes. They noted that there was very little evidence supporting a right to additional pay, which they regarded as “overtime” under those provisions. Ms. Moore-Powell said that on July 16 and 17, 2001, she received a phone call that required her to act on behalf of one of her clients and that she also received a call from Ms. Walker seeking assistance. Ms. Terry stated that persons assigned to the Family Preservation Unit were advised that they must be available (on call) around the clock, but that it was not always necessary that the worker physically respond to a