December 06, 2012
When Montgomery County unilaterally decided to discontinue a long-standing practice of allowing police shop stewards-in-training to attend disciplinary interrogations for training purposes, the police union filed a grievance with an arbitrator. The county filed a motion to dismiss the grievance, maintaining that arbitration of the issue was preempted by state law.
What happened. In its grievance, the Fraternal Order of Police, Montgomery County Lodge 35, Inc., (FOP) alleged that the county had violated the collective bargaining agreement (CBA) between the county and union when it unilaterally stopped a 20-year-old practice of allowing shop stewards-in-training to attend disciplinary interrogations conducted by the police department’s Internal Affairs Division.
The union maintained that the shop stewards-in-training did not participate in such interrogations. Instead, they attended the interrogations to observe experienced shop stewards represent law enforcement officers so that they could become effective representatives themselves in future interrogations. The county, meanwhile, said its decision to terminate the practice stemmed from the fact that “the FOP was permitting veteran shop stewards to ‘tag team’ the interrogators” with stewards-in-training.
Under the CBA, the training of shop stewards is not specifically mentioned. However, the union argued that the previous policy amounted to a “past practice,” which, as a result, was incorporated into the CBA and preserved under its “Maintenance of Standards/Retention of Benefits and Conditions” provision.
The county argued that Maryland’s Law Enforcement Officers’ Bill of Rights (LEOBR) governs the presence of individuals during an interrogation and that, with two exceptions, the statute preempts collective bargaining and arbitration on matters relating to the “subject and material” of the LEOBR. The union countered that its grievance involved the union’s right to train its employees and had “nothing to do with the LEOBR” and did “not deal with the procedural guarantees regarding the right of a police officer to representation at an interrogation.”
Agreeing with the union, the arbitrator concluded that the union’s grievance was not preempted by the LEOBR and denied the county’s motion to dismiss. However, the arbitrator stopped short of deciding whether the county was bound to continue letting shop stewards-in-training attend disciplinary interrogations.
The circuit court affirmed the arbitrator’s decision and granted summary judgment on behalf of the union. The county appealed.
What the court said. The Court of Appeals affirmed, noting that the LEOBR “is a comprehensive statute that provides procedural protections and an exclusive remedy to police officers facing disciplinary action.”
Under the circumstances of this case, “the LEOBR does not preempt collective bargaining and subsequent arbitration of the underlying grievance [i.e., whether the “past practice” of allowing shop stewards-in-training to attend disciplinary interrogations must continue]. The grievance does not implicate the LEOBR because the union is asserting its own right to train shop stewards during interrogations, and further, there is no allegation that the practice increases, impinges upon, or otherwise affects the substantive rights of an officer.”
The court said, “The ultimate question whether the shop steward training grievance amounts to a ‘past practice’ under the CBA is an issue reserved for the arbitrator.”Montgomery County, Maryland v. Fraternal Order of Police Montgomery County Lodge 35, Inc., Court of Appeals of Maryland, No. 105 (2012).
Point to remember: Employees in unionized workplaces have the right to have a representative present at an investigatory meeting that the employee reasonably believes might result in discipline. In such workplaces, grievance procedures are regulated by the union contract and are generally formal, rule-based processes. The collective bargaining agreement (CBA) will govern the handling of grievances filed by employees within the bargaining unit. Typically, CBAs contain a provision requiring arbitration of employee grievances.