Sunday, May 1, 2016

MD Court: Arbitrator exceeded his authority when he relied on a cba provision the County was not authorized to negotiate

Prince George's County, MD and the Prince George's County Police Civilian Employees Association were parties to a cba that included  language providing that covered employees were entitled to a notice of their eligibility to have a Union representative present prior to an investigatory interview.

Grievant was the subject of both a criminal investigation regarding alleged crimes and an internal affairs investigation concerning workplace conduct. Grievant was interviewed by employees of the Department's Criminal Investigations Division concerning the alleged crimes, and separately by the Department's Internal Affair's Division concerning workplace issues. Grievant was provided the requisite notice concerning the Internal Affairs investigation but not for the CID interview. Grievant's employment was ultimately terminated. An arbitrator overturned the dismissal, concluding in part that the failure to provide notice of grievant's eligibility for the presence of a Union representative during the CID investigation violated the cba and undermined the County's claim of just cause

The City sought to set aside the award, arguing, inter alia, that the award was against public policy. The Court of Special Appeals granted the County's request, concluding (in an opinion discussed in Weingarten and criminal investigations of employees) that the award was contrary to an explicit , dominant, and well-defined public policy of effective law enforcement. The Union appealed, and the Maryland Court of Appeals has now affirmed, but on different grounds. The Court described the issue before it as:

whether a county has the authority under the county's code to enter into a collective bargaining agreement requiring that, before a criminal investigative interview of one of the county's police civilian employees, the employee be advised of the right to have a union representative present at the interview—i.e., that the employee be advised of a Weingarten right in the collective bargaining agreement.

Concluding that the County had no such authority, the Court went on to decide that the arbitrator had therefore exceeded his authority by relying on a provision of the cba that was beyond the County's authority to enter into. It noted: 

In sum, a careful review of Maryland case law and authority from other jurisdictions leads to the conclusion that an arbitration award may be vacated where an arbitrator exceeded his or her authority and that an arbitrator exceeds the arbitrator's authority by issuing an award where one of the parties lacked authority to enter into the underlying contract. For the reasons set forth above, we conclude that PGCC § 13A-109(a) does not confer upon the County the authority to enter into a collective bargaining agreement requiring that a police civilian employee be advised of a right to have a union representative present before a criminal investigative interview by the Prince George's County Police Department.

In light of this conclusion the Court found it unnecessary to decide the public policy question addressed by the Court of Special Appeals.

The Court's opinion in Prince George's County Police Civilian Employees Association v. Prince George's County, Maryland can be found here.

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