Justices take exception to union’s claim that arbitrator’s authority is ‘final and binding’ in agreement
By Steve Lash
The Daily Record Newswire
Maryland’s top court kicked off its 2015-2016 term last week by considering whether union members have a right to union representation when being investigated by their employers for possible criminal conduct.
An attorney for Prince George’s County opposed the asserted right, telling the Court of Appeals that the public interest in preventing crime would be undermined if collective-bargaining provisions calling for a union representative to be present whenever a member is questioned applied to criminal investigations. But a lawyer for the Prince George’s County Police Civilian Employees Association said the county had waived its public-interest exception in agreeing to the provision.
The Court of Appeals’ first argument of its September 2015 Term concerned the union’s appeal of a lower-court decision vacating an arbitrator’s 30-day suspension of Marlon Ford, a civilian security guard whom the county had wanted fired for his allegedly unauthorized use of police equipment.
The Court of Special Appeals had ordered a new arbitration hearing, saying the arbitrator had erroneously ruled that Ford was improperly questioned without a union representative present about his alleged impersonation of a police officers and taking of an officer’s service weapon. Ford was never criminally charged.
At the Court of Appeals last week, each of the panel’s seven judges peppered the attorneys with questions regarding whether the county’s asserted interest in “effective law enforcement” trumped the union’s contractual right to have a union representative present when a member is questioned by his or her employer.
Judge Lynne A. Battaglia, for example, took exception to the union attorney’s contention that effective law enforcement is a vaguely defined “general consideration” of local government that does not supersede its obligation to permit a unionized employee to be represented when questioned.
Counties have a strong interest in law enforcement, as shown by the money and resources spent on police and prosecutors, Battaglia said. She wondered aloud what else the state would have to do to make the importance of law enforcement more explicit.
“Would the governor have to stand on the steps of the Capitol and say, ‘We support law enforcement’?” Battaglia said.
Chief Judge Mary Ellen Barbera agreed the county’s asserted interest in effective law enforcement “casts a wide net” but is not necessarily ill-defined. A criminal investigation, such as the alleged taking of a gun, goes “to the core of law enforcement,” Barbera said.
Role of arbitrator
The union’s attorney, Abigail V. Carter, responded that the county could have sought an exception for alleged criminal conduct in the collective-bargaining agreement but declined.
“The parties chose this,” said Carter, of Bredhoff & Kaiser PLLC in Washington, D.C. “The county elected to enter into this process.”
But Carter drew fire from the bench when she argued the court must defer to the arbitrator’s decision, as the ruling was neither the result of fraud nor contrary to Maryland law.
The arbitrator has “final and binding authority,” Carter said.
But Judge Sally D. Adkins interjected, “You might want to step back. You are not stating that the court has no authority.”
Judge Glenn T. Harrell Jr. questioned the arbitrator’s legal basis for his decision, asking aloud out from “what orifice did he pull” the 30-day suspension.
Harrell, who reached the mandatory judicial retirement age of 70 in June, is hearing cases by special assignment until his replacement is sworn in.
The county’s lawyers picked up on the judges’ concerns.
“The authority of an arbitrator is not absolute,” said Josue Pierre, an associate Prince George’s County attorney.
Requiring union representation for a member under criminal investigation would create “impermissible interference” with law enforcement, Pierre added. “The police department would be restrained in pursuing the criminal act.”
The arbitrator “went off the rails” with his decision, Pierre said.
But Judge Shirley M. Watts said the arbitrator viewed Ford’s alleged actions as being employment-related and thus governed by the collective-bargaining agreement.
Adkins added that providing a union representative for a worker does not violate the county’s interest because “the police can still enforce the law.”
Pierre responded that awaiting a union representative in a criminal investigation “impedes the police department,” especially if time is of the essence.
“What if there is a kidnapping?” Pierre asked. “What if there is an exigent circumstance?”
14-hour interrogation
The controversial questioning of Ford began on May 16, 2011, when his supervisor asked him about a firearm that was possibly stolen the previous day from the women’s bathroom at police headquarters.
About a dozen other officers joined in the questioning after Ford was advised of but waived his rights to an attorney and to remain silent.
The interrogation lasted about 14 hours, during which Ford was never advised of a right to have a union representative present under the association’s collective-bargaining agreement, according to court documents. The contract provision calls for union representation during proceedings that could lead to employee discipline.
After the interrogation, Ford was placed on administrative leave pending the outcome of an internal affairs investigation. A report issued in July 2011 notified him of his right to union representation.
On Aug. 12, 2011, police Chief Mark A. Magaw issued a Notice of Intent of a Proposed Disciplinary Action, and two weeks later issued a notice that he was firing Ford.
The union appealed the firing to an arbitrator, who ruled in December 2012, that Ford should face only a 30-day suspension. Ford has been back on the job since April 22, 2013, according to his attorneys.
The arbitrator, James C. Oldham, said the county failed to show that Ford had committed a firing offense. Oldham also said the county violated the labor agreement by not telling Ford he was entitled to union representation at the interrogation.
The Court of Special Appeals rejected the union’s argument that the so-called Weingarten rule, which generally requires union representation at questioning that could lead to employee discipline, applies to criminal inquiries. The rule derives from the U.S. Supreme Court’s 1975 decision in National Labor Relations Board v. Weingarten.
In its reported decision last September, the intermediate appellate court agreed with the county that the compelling goal of uncovering crime trumped collective-bargaining provisions ensuring the presence of a union representative.
The Court of Appeals is expected to render its decision by Aug. 31 in the case, Prince George’s County Police Civilian Employees Association v. Prince George’s County, No. 1, September Term 2015.
