Merryman & F.O.P. v. Univ. of Baltimore

Keith Merryman and Fraternal Order of Police, Lodge 146 v. University of Baltimore, No.
33, September Term, 2020
LABOR AND EMPLOYMENT – MD. CODE ANN., EDUC. (1978, 2014 REPL.
VOL.) (“ED”) §§ 13-201 TO 13-207 – GRIEVANCE PROCEDURE – ED § 13-201(c)
– “GRIEVANCE” – “GRIEVABLE ISSUE” – Court of Appeals held that, under
memorandum of understanding between parties, which incorporated grievance procedures
set forth in Md. Code Ann., Educ. (1978, 2014 Repl. Vol.) (“ED”) §§ 13-201 to 13-207,
including definition of “grievance” set forth in ED § 13-201(c), complaint brought by
petitioners concerning holiday leave was not grievable issue because it was dispute that
“pertain[ed] to [] general level of . . . fringe benefits, or to other broad areas of financial
management and staffing[.]” Holiday leave is fringe benefit and complaint concerning
number of hours of holiday leave to which all officers are entitled, which essentially
requested that each officer receive additional twenty-two hours of holiday leave per year,
was complaint pertaining to general level of fringe benefits provided to officers and thus
not grievable issue.
Circuit Court for Baltimore City
Case No. 24-C-18-006045
Argued: February 1, 2021
IN THE COURT OF APPEALS
OF MARYLAND
No. 33
September Term, 2020
______________________________________
KEITH MERRYMAN AND FRATERNAL
ORDER OF POLICE, LODGE 146
v.
UNIVERSITY OF BALTIMORE
______________________________________
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: March 26, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-03-26
09:52-04:00
Suzanne C. Johnson, Clerk
Md. Code Ann., Educ. (1978, 2014 Repl. Vol.) (“ED”) §§ 13-201 to 13-207 sets
forth grievance procedures used to resolve certain disputes or complaints between the
institutions that comprise the University System of Maryland and their employees. ED §
13-203 establishes a three-step procedure for addressing grievances brought by employees.
To be subject to the three-step grievance procedure, a complaint must meet the definition
of a grievance as set forth in ED § 13-201(c) and must not be a matter that the section
identifies as not a grievable issue:
“Grievance” means any cause of complaint arising between a classified
employee or associate staff employee and his employer on a matter
concerning discipline, alleged discrimination, promotion, assignment, or
interpretation or application of University rules or departmental procedures
over which the University management has control. However, if the
complaint pertains to the general level of wages, wage patterns, fringe
benefits, or to other broad areas of financial management and staffing, it is
not a grievable issue.[1]
1
The definition of “grievance” contained in ED § 13-201(c) is the version of the
statute that was incorporated into a memorandum of understanding between the parties in
this case and which remained in effect as the parties went through the three-step grievance
process concerning the dispute at issue in the case. Effective October 1, 2019, the General
Assembly amended ED § 13-201(c). See 2019 Md. Laws 4069-71 (Vol. V, Ch. 697, H.B.
822); 2019 Md. Laws 4072-74 (Vol. V, Ch. 698, S.B. 711). Md. Code Ann., Educ. (1978,
2018 Repl. Vol., 2019 Supp.) § 13-201(c) now provides:
(1) “Grievance” means any cause of complaint arising between a regular full-
time or part-time employee and the University on a matter concerning
discipline, alleged discrimination, promotion, assignment, or interpretation
or application of University rules or departmental procedures over which the
University management has control.
(2) “Grievance” does not include:
(i) Complaints on the general level of wages, wage patterns, fringe
benefits, or other broad areas of financial management and staffing; or
ED § 13-203(a) provides that the three-step grievance procedure is available only
if, after informal discussion with a supervisor, a dispute remains unresolved. ED § 13-
203(b) describes step one of the grievance procedure, which involves initiation of a
complaint presented to a department head or chairman or designee followed by a
conference and a written decision from the department head or chairman or designee. ED
§ 13-203(c) sets forth step two of the grievance procedure—appeal of the initial written
decision—which similarly involves a conference followed by a written decision from the
president of the constituent institution or the president’s designated representative. ED §
13-203(d) sets forth step three of the grievance procedure, which involves arbitration or
submission of the grievance to the Chancellor of the University System of Maryland, who
may delegate responsibility to the Office of Administrative Hearings for an administrative
hearing to be conducted by an administrative law judge.
In this case, the Fraternal Order of Police, Lodge 146 (“the Union”), Petitioner, is
the bargaining unit representative of the police officers who work at the University of
Baltimore (“the University”), Respondent. Keith Merryman, Petitioner, is a police officer
employed by the University and the President of the Union.2 In January 2018, the
(ii) Any cause of complaint by any employee who is not represented
by an exclusive representative under Title 3 of the State Personnel and
Pensions Article.
The amendment to the definition of “grievance” set forth ED § 13-201(c) is of no
consequence to our analysis.
2
Although both Merryman and the Union are Petitioners, because Merryman’s
involvement in the case is due to his role as the President of the Union, unless specifically
referring to an action that Merryman individually took, we refer to actions by Petitioners
as actions by the Union.
-2-
University implemented a work schedule change for police officers, moving from five
eight-hour shifts to four ten-hour shifts per week. The schedule change did not affect the
total number of hours police officers were required to work a week. According to
Merryman, because, as a result of the schedule change, an officer’s workday now consisted
of ten hours, each holiday should also “be credited at the same rate of 10 hours.” In other
words, the Union sought to have a holiday defined as consisting of ten hours, seeking a
total of 110 hours rather than eighty-eight hours of holiday leave per year, essentially
requesting twenty-two additional holiday leave hours per year for all officers of the Union.
Merryman, on behalf of himself and all other members of the Union, initiated a Step
1 Grievance through the statutory grievance procedure, which had been incorporated into
a memorandum of understanding between the parties. The University concluded that the
complaint pertained to fringe benefits and staffing and was not a grievable issue under the
memorandum of understanding and ED § 13-201(c). Merryman next submitted a Step 2
Grievance. The University again concluded that, pursuant to the memorandum of
understanding and ED § 13-201(c), holiday leave is a fringe benefit, and a dispute
involving holiday leave is not a grievable issue. Additionally, the University determined
that it could not increase the amount of holiday leave authorized by the University System
of Maryland and the Board of Regents.
The Union filed a Step 3 Grievance with the Office of Administrative Hearings,
requesting a hearing before an administrative law judge (“ALJ”). The University moved
to dismiss the grievance on the ground that a complaint about holiday leave was not
grievable because it was a complaint pertaining to fringe benefits. Following a hearing on
-3-
the motion to dismiss, the ALJ denied the motion, concluding that the issue raised by the
Union was one of contract interpretation and thus grievable. Thereafter, the ALJ conducted
an evidentiary hearing on the merits, and issued a written decision ruling in favor of the
Union. Among other things, the ALJ concluded that, as a result of the schedule change,
the University effectively changed the definition of a workday from eight hours to ten hours
and that the memorandum of understanding should be interpreted to provide officers with
ten hours of paid leave for each holiday (rather than eight hours). The ALJ ordered the
parties to identify the officers affected by the schedule change (officers who had used non-
holiday leave hours for a holiday) and to credit those officers with the non-holiday hours
used.
The University sought judicial review in the Circuit Court for Baltimore City. After
a hearing on the matter, the circuit court issued an order affirming in part and reversing in
part the ALJ’s decision. The circuit court affirmed the ALJ’s conclusion that the University
changed the definition of a workday to ten hours and that the change affected the allocation
of holiday leave. The circuit court reversed, however, as to all other conclusions made by
the ALJ. The circuit court found that, pursuant to ED § 12-105, neither the circuit court
nor the ALJ could issue an order that had the effect of increasing the budget of the
University System of Maryland.3
ED § 12-105(a)(1)(ii) provides that, “[i]n consultation with the institutions and the
3
Chancellor, the Board [of Regents] shall: [r]eview, modify, as necessary, and approve
consolidated budget requests for appropriations for the University System of Maryland
with respect to: 1 The operating budget; and 2. The capital budget[.]” (Paragraph breaks
omitted).
-4-
The Union appealed to the Court of Special Appeals, which, in a reported opinion,
held that the ALJ lacked jurisdiction over the complaint because the dispute was not a
grievable issue under the statutory grievance procedure contained in the memorandum of
understanding. See Merryman v. Univ. of Baltimore, 246 Md. App. 544, 560, 231 A.3d
498, 508 (2020). The Court of Special Appeals concluded that the parties could not, by
agreement, confer jurisdiction upon the ALJ by expanding the scope of grievances covered
by the statutory procedures incorporated into the memorandum of understanding. See id.
at 559, 231 A.3d at 507. Because it held that the ALJ lacked jurisdiction, the Court of
Special Appeals did not address the merits of the ALJ’s decision or the propriety of the
remedy ordered. See id. at 560, 231 A.3d at 508. The Court of Special Appeals vacated
the circuit court’s judgment and remanded the case to that court with instruction to remand
the case to the ALJ for the ALJ to dismiss the grievance proceeding. See id. at 561, 231
A.3d at 508. Thereafter, the Union filed in this Court a petition for a writ of certiorari,
which this Court granted. See Merryman v. Univ. of Baltimore, 471 Md. 101, 240 A.3d
852 (2020).
Against this backdrop, at bottom, we must determine whether the complaint about
holiday leave presents a grievable issue that is subject to the three-step grievance procedure
set forth in the memorandum of understanding. We hold that, under the memorandum of
understanding, which incorporates the grievance procedures set forth in ED §§ 13-201 to
13-207, including the definition of a “grievance” set forth in ED § 13-201(c), the complaint
brought by the Union concerning holiday leave does not constitute a grievable issue
because it is a dispute that “pertains to the general level of . . . fringe benefits, or to other
-5-
broad areas of financial management and staffing[.]” Holiday leave is a fringe benefit and
the complaint concerning the number of hours of holiday leave to which officers are
entitled—which essentially requested that each officer receive an additional twenty-two
hours of holiday leave per year—is a complaint pertaining to the general level of fringe
benefits provided to officers and as such is not a grievable issue. As such, we affirm the
judgment of the Court of Special Appeals, although for somewhat different reasons.
BACKGROUND
Policy VII-7.30
The Board of Regents of the University System of Maryland has adopted Policy
VII-7.30 (Policy on Holiday Leave for Regular Nonexempt and Exempt Staff Employees),
Part II (Amount of Holiday Leave) of which states that “[e]mployees are eligible to earn
11 holidays per year, or 12 holidays during a year of general or congressional elections[.]”4
Part IV (Scheduling of Holidays for Continuous Operations) states:
Institutions which have departments that must provide service on a
continuous seven day-a-week basis may schedule an employee’s holidays.
Affected departments may schedule a specific day or days each month as a
day off, and these days shall be treated in the same manner as regular
holidays are treated for other employees. For employees in this category,
one day of holiday leave shall be granted for each month, except that for the
months of January and July when two days of holiday leave shall be granted.
During a year of general or congressional elections, an additional day shall
be granted for the month of November. Institutions have the sole discretion
to determine which individual employees in a department will be placed in
this category.
4
On December 3, 1999, the Board of Regents adopted Policy VII-7.30. On January
2 and 12, 2000, Policy VII-7.30 became effective, and was later amended on October 9,
2015.
-6-
The Memorandum of Understanding
The Union and the University entered into a Memorandum of Understanding,
effective from July 1, 2016 through June 30, 2017 (“the MOU”).5 The MOU applies to the
relationship between the University and its sworn police officer unit.6 Article 6 of the
MOU, entitled “Hours of Work,” addresses officers’ work hours. Pursuant to Section 1 of
Article 6, a “regular workday” for University police consists of eight hours. According to
Section 3, a “regular workweek” consists of five regular workdays. Section 5 gives the
University the discretion to change the work schedule “as deemed necessary to meet the
operational needs of the University[,]” provided that the University gives the affected
officers at least fourteen days’ notice of any permanent change in the work schedule.
5
The MOU contained in the record indicates that it expired on June 30, 2017. The
dispute regarding holiday leave occurred after that date. Section 2 of Article 29 of the
MOU contemplated renewal of the MOU, though, stating:
Should either party desire to negotiate a successor MOU, they may only do
so by providing written notification of its intent to do so to the other party by
August 1, 2016. After notification is provided, the parties shall then
commence negotiations for a successor MOU during the remainder of the
last year of this MOU at dates and times agreed by the parties.
At an evidentiary hearing before the ALJ, a witness for the University testified that the
MOU was still in effect, and that there was a revised agreement pending ratification. Like
the Court of Special Appeals, we assume that the MOU was renewed or otherwise
extended. See Merryman v. Univ. of Baltimore, 246 Md. App. 544, 547 n.2, 231 A.3d 498,
500 n.2 (2020).
6
According to the MOU, the terms “employees,” “sworn police officers,” and
“employees covered by this MOU” “mean all eligible sworn police officers employed by
the University in the following job classifications: Police Officer I, Police Officer II.”
-7-
The MOU addresses various forms of leave.7 Relevant here, Article 15 of the MOU
addresses holidays. Section 1 of Article 15, entitled “Recognized Holidays,” states that
“[b]argaining unit employees are eligible to earn 11 holidays per year, or 12 holidays
during a year of general or congressional elections, and any other special observance as
required by the legislature and Governor.” Section 1 lists twelve holidays for which
bargaining unit employees were eligible in an election year, including Election Day. In
addition to those holidays, bargaining unit employees are granted three administrative
holidays each year.
Section 2 of Article 15 of the MOU, titled “Scheduling of Holidays for Continuous
Operations,” explains that University police would sometimes be required to work on
holidays, but would be permitted to use accrued holiday leave hours to schedule an
alternative day off or, if rescheduling was not possible, an officer could cash in the hours
and receive a day’s pay in lieu of taking another day off. Specifically, Section 2 provides:
Holidays for Sworn Police Officers will be prescheduled based upon
the workweek schedule rotation. The University reserves the right to assign
holidays in accordance with this schedule rotation and shall make an effort
to grant the Employee the day off requested, subject to operational needs.
An Employee may be required to work on the Employee’s prescheduled
holiday. If required to work on their prescheduled holiday, the Employee
will be paid at their regular straight time rate of pay for all hours worked plus
any overtime pay required in accordance with Article 6 Hours of Work,
Section 7 of this MOU. However, in the event, the Officer is required to
7
For example, Article 12 of the MOU addresses sick leave. Article 13 addresses
other types of leave, including annual leave, personal leave, the leave reserve fund, family
and medical leave, jury service and legal actions leave, educational leave and professional
improvement leave, administrative leave, military leave with pay, call-up to active military
duty during a national or international crisis or conflict, leave of absence without pay, leave
for disaster service, accident leave, and parental leave. Article 14 addresses union leave—
leave “for the purpose of participating in approved union activities.”
-8-
work on Thanksgiving Day and/or Christmas Day the Employee will receive
pay at the rate of one and half (1½) times their regular straight time rate of
pay for all hours worked on those days. In addition, the Employee shall be
granted the holiday with pay or an alternative date to be scheduled by the
University within forty-five (45) days of the date initially pre-scheduled,
provided however that, if all operational needs prevent the rescheduling of
the holiday within that ninety (90) day period, the University will reschedule
the holiday within six (6) months of the date initially pre-scheduled. Subject
to operational needs, the University will make a good faith effort to schedule
an employees’ [sic] pre-scheduled or alternative holidays on a mutually
agreeable date, however, the employee may be paid at the applicable rate for
all hours worked and provided with a regular day’s pay as holiday pay in lieu
of being granted another day off.
Section 3 of Article 15, entitled “Termination Payment,” provides: “Employees,
who leave their employment at the University for any reason, are entitled to be paid for any
unused holiday leave that has been earned as of the date of separation.”
Aside from recognizing that University police officers are eligible to earn eleven
holidays per year (twelve during a general or congressional election year), neither Article
15 nor any other Article in the MOU specifies how many hours of paid leave officers
accrued for each holiday, i.e., how many hours were in a holiday.
Article 11 of the MOU, entitled “Grievance Procedure,” outlines the procedures for
resolving certain disputes between the Union and the University. In relevant part, Article
11 states:
In the event of an alleged violation or disagreement over any of the
provisions of this MOU, a bargaining unit employee represented by FOP,
which shall be the exclusive employee organization to represent the
employees, shall have the right to file a grievance in accordance with Section
13-201 et seq. of the Annotated Code of Maryland, Education Article, a copy
of which is set forth below for convenient reference.
(Underlining omitted). Article 11 quotes and incorporates into the MOU ED §§ 13-201 to
-9-
13-207.
Relevant Statutory Provisions
The provisions of the Education Article incorporated into Article 11 of the MOU
set forth procedures for addressing grievances. ED § 13-201(c), as incorporated into the
MOU, defines a “grievance” as
any cause of complaint arising between a classified employee or associate
staff employee and his employer on a matter concerning discipline, alleged
discrimination, promotion, assignment, or interpretation or application of
University rules or departmental procedures over which the University
management has control. However, if the complaint pertains to the general
level of wages, wage patterns, fringe benefits, or to other broad areas of
financial management and staffing, it is not a grievable issue.
ED § 13-203(a) provides for a three-step grievance procedure that is available only
“[i]f, following informal discussion with [a] supervisor, a dispute remains unresolved[.]”
ED § 13-203(b) describes step one of the grievance procedure, which involves initiation of
a complaint followed by an initial conference and a written decision, stating:
(1) Step One. Step one is the initiation of a complaint. Grievances shall be
initiated within 30 calendar days of the action involved, or within 30 calendar
days of the employee having reasonable knowledge of the act, unless these
time limits are further delimited as stated in § 13-205 of this subtitle. Appeals
within the grievance procedure shall be timed from receipt of the written
opinion of management or from when such opinion is due, whichever comes
first. An aggrieved employee or the employee’s designated representative
may present the grievance in writing to the department head or chairman or
designee for formal consideration. If the grievance is presented to the
department head or chairman or designee, within 5 days after the receipt of
the written grievance a conference shall be held with the aggrieved or the
employee’s designated representative and within 5 days after the conclusion
of the conference a decision shall be rendered in writing to the aggrieved or
the employee’s designated representative. If the aggrieved employee is not
satisfied with the decision rendered at this step, the employee or the
employee’s designated representative may appeal in writing to step two
within 5 days.
- 10 -
(2) Both employee and department head or chairman or designee shall
continue to review the matter, either privately or with the help of others in
the employee’s immediate work unit who are directly involved in the
grievance. Each department head or chairman or designee shall use
judgment in keeping superiors informed of the status of each grievance and,
if necessary, request guidance, advisory committees, or other assistance
consistent with departmental policy. If either the employee or the department
head or chairman or designee feels the need for aid in arriving at a solution,
the campus personnel department may be requested to provide resource staff
or any other available resource personnel may be invited to participate in
further discussions. The addition of such participants does not relieve the
department head or chairman or designee and the employee from
responsibility for resolving the problem.
ED § 13-203(c) sets forth step two of the grievance procedure—appeal of the initial
written decision—stating:
Step Two. The appeal shall be submitted to the president of the constituent
institution or the president’s designated representative within 5 days after the
receipt of the written decision at step one. The president or the president’s
designated representative shall hold a conference with the aggrieved or the
employee’s designated representative within 10 days of receipt of the written
grievance appeal and render a written decision within 15 days after the
conclusion of the conference.
ED § 13-203(d) sets forth step three of the grievance procedure, which involves
arbitration or an administrative hearing before an ALJ, stating:
Step Three. In the case of any still unresolved grievance between an
employee and the constituent institution, the aggrieved employee, after
exhausting all available procedures provided by the constituent institution,
may submit the grievance to either arbitration or to the Chancellor who may
delegate this responsibility to the Office of Administrative Hearings in
accordance with Title 10, Subtitle 2 of the State Government Article. In
either case, the appeal shall be submitted within 10 days after the receipt of
any written decision pertaining to that grievance and issued by the constituent
institution. If the grievance is arbitrated, the parties shall select an arbitrator
by mutual agreement. If they are unable to reach a mutual agreement, an
arbitrator shall be supplied by the American Arbitration Association by their
procedures. Any fees resulting from arbitration are assessed by the arbitrator
- 11 -
equally between the two parties. The arbitration award is advisory to the
Chancellor or administrative law judge, as appropriate, and an additional
appeal or hearing may not be considered. The Chancellor or administrative
law judge, as appropriate, shall make the final decision that is binding on all
parties.
ED § 13-204 provides:
A decision may not be made at any step of the grievance procedure that
conflicts with or modifies a policy approved by the Board of Regents of the
University System of Maryland or with any applicable statute or with any
administrative regulation issued under appropriate statutory authority or that
otherwise delimits the lawfully delegated authority of University officials
unless prior approval has been obtained from the responsible official.
The Holiday Leave Dispute
In a memorandum to sworn personnel of the University’s police department dated
November 7, 2017, the department’s chief, Samuel D. Tress, stated that, effective January
3, 2018, the department would transition from eight-hour shifts to ten-hour shifts.8 Chief
Tress explained that each officer would still work forty hours per week, or eighty hours per
pay period. The memorandum also explained that the new schedule cycle would run for
49 days (7 weeks) and that, out of the 49 days, an officer would work for 28 days and be
off for 21 days. The change was made pursuant to Article 6, Section 5 of the MOU, which
provides that work schedules may be changed by the University at its discretion as needed
upon fourteen days’ notice. The memorandum did not mention any adjustment concerning
holiday leave or any other form of leave. It is undisputed that the University had the right
to make the schedule change; what is at issue is whether the University was required to
8
According to testimony at the hearing before the ALJ, the University made the
schedule change to address officer safety, crime trends, and calls for service.
- 12 -
increase the hours allotted for holiday leave.
In a letter to Chief Tress dated January 25, 2018 (after the schedule change went
into effect), on behalf of himself and all other members of the Union, Merryman submitted
a Step 1 Grievance pursuant to Article 11 of the MOU. Merryman stated that the University
had violated Article 15 of the MOU by failing to credit employees with the appropriate
amount of holiday leave. Merryman indicated that, by moving employees from eight-hour
shifts to ten-hour shifts, the University had redefined a “workday” as ten hours. Merryman
argued that, because the University had exercised its prerogative to increase an employee’s
workday from eight hours to ten hours, the University was obligated to credit all holidays
and any makeup dates at a rate of ten hours per holiday.9 On behalf of the Union,
Merryman requested that the University acknowledge, among other things, that a holiday
is defined as ten hours and that any officer who worked on a prescheduled holiday was
entitled to ten hours of holiday leave.
In a letter to Merryman dated February 7, 2018, at Step 1 of the Grievance
procedure, Chad R. Ellis, the Acting Chief of Police, responded that, after consideration, it
9
Merryman explained that, as a result of the transition to ten-hour shifts, if an
employee was off on a prescheduled holiday, the employee should be granted ten hours of
holiday leave. But, under the schedule change, if an employee worked ten hours on a
prescheduled holiday and was granted a makeup holiday pursuant to Article 15, the
employee would be granted only eight hours of holiday leave, and would be required to
use up to two hours of another type of leave to be entitled to a day off to make up for the
worked holiday. Or if an employee wanted to be off on a scheduled holiday, the employee
would be granted only eight hours of holiday leave and would be required to use two hours
of another type of leave to have the entire holiday off. Merryman contended that this
outcome was illogical, and that holidays should be credited the same number of hours as
workdays for all employees.
- 13 -
had been determined that the Union’s complaint about holiday leave pertained to fringe
benefits and staffing, and thus was not a grievable issue under the MOU.
In a letter to Mary L. Maher, the Assistant Vice President of Human Resources of
the University, dated February 9, 2018, on behalf of himself and all other members of the
Union, Merryman submitted a Step 2 Grievance. In addition to repeating the contentions
that he made in his January 25, 2018 letter to Chief Tress, Merryman argued that the dispute
was a grievable issue under the grievance procedure set forth in Article 11 of the MOU.
Specifically, Merryman asserted that Article 11 indicated that the University and the Union
agreed to make any disputes regarding the interpretation or application of the MOU subject
to the grievance procedure. Merryman maintained that ED §§ 13-201 to 13-207 merely set
forth the procedural requirements for presenting a grievance and did not prohibit “grieving
issues regarding the interpretation of the MOU.”
In a letter to Merryman dated March 5, 2018, Beth Amyot, Chief Finance Officer
and Vice President for Administration & Finance of the University, responded that, per
Article 11 of the MOU and ED § 13-201(c), the dispute about holiday leave was not a
grievable issue because holiday leave is a fringe benefit. Amyot stated that the University
could not “increase the maximum holiday hour accrual authorized by [the University
System of Maryland] and the Board of Regents, and as outlined” by the University’s
Human Resource website.10
10
Amyot noted, though, that, in response to recordkeeping issues associated with the
change to ten-hour shifts, the University would be modifying its recordkeeping procedures
as to leave.
- 14 -
Proceedings before the ALJ
On March 15, 2018, the Union filed a Step 3 Grievance with the Office of
Administrative Hearings, requesting a hearing before an ALJ.
On April 23, 2018, the University filed with the ALJ a motion to dismiss, arguing
that the complaint about holiday leave was not a grievable issue because it pertained to
fringe benefits and that, as such, the complaint must be dismissed. The ALJ conducted a
hearing on the motion to dismiss. At the hearing, the University’s counsel contended that
the complaint about holiday leave was a complaint about the level of fringe benefits.
Among other things, the University’s counsel maintained that the amount of fringe benefits
in the form of holiday leave is set by the University System of Maryland policy, namely,
Policy VII-7.30, and that, if the ALJ were to decide the dispute in the Union’s favor, it
would be changing a policy set by the University System of Maryland. The University’s
counsel acknowledged that Policy VII-7.30 addresses holiday leave in terms of days, not
hours, but stated that police officers, as State employees, are aware that leave is accrued in
hours. The University’s counsel contended that the Union sought to have the ALJ grant its
members something (an increase in holiday leave) that the policy does not allow other
nonexempt employees.11
The University’s counsel also argued that the change in work schedule did not affect
the total number of hours that officers work in a year—forty hours per week or 2,080 hours
per year—and that, as such, the change in work schedule did not change the amount of any
According to Maher’s testimony before the ALJ at the evidentiary hearing,
11
nonexempt employees are eligible for overtime pay.
- 15 -
form of leave, including the eighty-eight hours of holiday leave. The University’s counsel
pointed out that the schedule change did not change the amount of any type of leave—sick
leave, annual leave, personal leave, or holiday leave.
By contrast, the Union’s counsel contended that the complaint about holiday leave
concerned a disagreement about the interpretation of the MOU and Policy VII-7.30, not a
dispute about the general level of benefits, and, as such, presented a grievable issue. The
Union’s counsel argued that a holiday consists of a complete day that an employee has to
take off and although an employee accrues “holidays in hours, [] they should accrue it
based on their shift scheduled[.]” According to the Union’s counsel, the Union was not
asking for more holidays as the Union was not seeking an increase from eleven holidays
to, for example, thirteen holidays. The Union’s counsel reasoned that the disagreement
concerned “what a holiday is” and that if a workday is ten hours rather than eight hours
and officers are receiving eighty-eight hours of holiday leave, then the officers are “now
only getting 8.8 days of holiday leave, which is a decrease[.]”
On June 7, 2018, the ALJ issued a written ruling denying the motion to dismiss. In
agreement with the Union’s counsel, the ALJ determined that the issue raised by the Union
was “an issue of contract interpretation,” and was “included in the definition of [a]
grievance cited by the University and used in Article 11 of the MOU.”
On July 16, 2018, the ALJ conducted an evidentiary hearing on the merits. During
opening statements, the Union’s counsel recognized that the University had the right to
make the schedule change, but argued that a holiday is a day off, and that a holiday should
equate to a workday, which had been changed to ten hours. The University’s counsel
- 16 -
contended that the change in the work schedule neither changed the number of hours
officers were required to work nor changed the nature of the amount of fringe benefits that
officers received. The University’s counsel argued that, like other nonexempt employees
of the University, officers continued to receive eighty-eight hours of holiday leave in a
non-election year. The University’s counsel asserted that the Union sought to have holiday
leave increased to 110 hours, which would be a departure from the University System of
Maryland’s policy and would require approval from the Board of Regents.
As the sole witness for the Union, among other things, Merryman testified that, after
the schedule change but before the Step 2 Grievance decision, a holiday had to be taken in
an eight-hour increment and officers “had to find additional two hours somewhere to use.”
After the Step 2 Grievance decision, holiday leave was placed into a leave bank and “could
be used in any increments [an officer] wanted: two, three hours, ten hours, whatever you
decided to take, eight hours.” Merryman testified that the change did not alleviate his
concern because, after using eighty-eight hours of holiday leave, officers still needed to
use additional hours from other forms of leave “for the ten-hour days to get 110 hours.”
Merryman testified that, in the Union’s view, a holiday is a ten-hour day because it is
equivalent to a workday. On cross-examination, Merryman acknowledged that both before
and after the schedule change, officers received eighty-eight hours of holiday leave and
agreed that the Union was essentially asking the University to give officers ten hours of
holiday leave for each of the eleven holidays granted to them. When asked, Merryman
acknowledged that other nonexempt employees do not get 110 hours of holiday leave per
year.
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As a witness for the University, Chief Ellis, then the Chief of Police, testified that
both before and after the schedule change officers worked forty hours per week and 2,080
hours per year. Chief Ellis testified that the schedule change did not affect the amount of
holiday leave that officers receive, which is eighty-eight hours of holiday leave. Chief Ellis
explained that leave has always accrued and been measured in terms of hours and that an
officer’s time sheet reflects how many hours of each type of leave the officer has accrued
at any given time. Chief Ellis testified that, after the schedule change, upon discussions
with Human Resources and Merryman, holiday leave had been placed in a leave bank to
be used in hourly increments. When asked what an officer would put on a time sheet if the
officer was taking, for example, the Fourth of July off on July 10th, Chief Ellis responded
that it would depend on what leave the officer has in the officer’s leave bank: “If the officer
has ten hours of holiday leave, he can . . . surely put ten hours of holiday leave. If they
have ten hours of annual [leave], they could do that. If they only had four hours of holiday
. . . then they need to complement it with the other six, that’s what they would do.” On
redirect examination, Chief Ellis testified that the schedule change only amounted to less
time of holiday leave if a holiday was defined in terms of days, not hours, but he reiterated
that leave has always accrued and been measured in hours.
As a witness for the University, Maher, formerly the Assistant Vice President and
Chief Human Resources Officer for the University and then Special Assistant to the Chief
Financial Officer, testified like Chief Ellis, that before and after the schedule change
officers worked forty hours a week or 2,080 hours per year. Maher testified that both
before and after the schedule change the various types of leave continued to be accrued in
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the same amount per year, for example: eighty-eight hours of sick leave, which accrued at
the rate of 4.61 hours biweekly and could be taken in increments of thirty minutes; eighty-
eight hours of annual leave (increasing by eight hours with each year of service), which
could be taken in increments of thirty minutes; twenty-four hours of personal leave, which
could be taken in increments of thirty minutes; and eighty-eight hours of holiday leave,
plus twenty-four hours of administrative-holiday leave, in a non-election year. Maher, too,
testified that officers could now take holiday leave in increments from thirty minutes up to
ten hours in a shift. Maher confirmed that time sheets have always reflected the accrual of
leave on an hourly basis, as opposed to a day. Maher testified that the University System
of Maryland also has leave policies “that are more general” that the University is required
“to be aligned with[.]”
Maher testified that, if the officers were to receive ten hours of holiday leave for
each of the eleven designated holidays, the result would be an increase of twenty-two hours
of holiday leave or 110 hours of holiday leave instead of eighty-eight hours. Maher
testified that the twenty-two-hour difference “would be a fringe benefit impact” and the
University would need “to redefine their fringe benefits to be inclusive of more holiday
leave.” Maher explained:
Typically, through that process, we would need to -- obviously,
there’s a financial increase, benefit cost increase, or fringe benefit cost
increase for the university per officer, but we would also need to get support
from [the University System of Maryland] and [] approval from the Board of
Regents and support from the State Attorney General’s Office. . . . Because
the [University System of Maryland] policy, although it’s not spoken in
hours, it refers to a holiday in the traditional sense of eight hours, plus the
88-hour increments that institutions have to award their workforce.
And so it would require our getting their support and approval from
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the Board of Regents because it would increase the cost to the institution, and
then it would provide a different fringe-benefit program for a subset of
employees than any other employee in that institution.
Maher testified that no other nonexempt employee at the University receives 110 hours of
holiday leave.
Maher acknowledged that Policy VII-7.30, which is binding on the University, does
not define the number of hours in a holiday and instead “refers to earning 11 holidays
and/or 12 holidays, . . . but there’s nothing that speaks specifically to eight hours.” On
cross-examination, Maher again described the impact of eighty-eight hours of holiday
leave versus 110 hours of holiday leave as an increase of twenty-two additional hours and
testified that the University would need “preapproval from the Board of Regents.” Maher
reiterated that the University would need “to get university system approval if there’s
additional costs[.]”
In closing argument, the Union’s counsel contended that University policy does not
define holidays in terms of hours and instead provides for eleven holidays per year. The
Union’s counsel requested that the ALJ award two hours of holiday leave for any days that
officers were required to use other leave “to fill the gap between eight and ten hours.” By
contrast, the University’s counsel asserted that the MOU did not define a holiday as the
same number of hours in a work shift and that time sheets had always shown that leave
was accrued and taken in hours. The University’s counsel maintained that if there were to
be a deviation from the standard policy of eighty-eight holiday leave hours, there would
need to be “a series of approvals” that could not “be done in a grievance proceeding because
it will be contrary to [University System of Maryland] policies.”
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On October 15, 2018, the ALJ issued a written decision in favor of the Union. In
the decision, among other things, the ALJ reasoned:
The University argued the change would increase the number of annual
holidays and increase a fringe benefit. The reasoning provided is illogical
since the MOU permits contract changes to foundational terms such as
workday. Further, the [Union is] not requesting an additional holiday beyond
what is already provided by the [University System of Maryland]. The
[Union] simply request[s] the same allocation previously provided – eight
hours meant eight hours, including for holiday leave allocation. In light of
the new schedule, the [Union] argue[s] ten hours should mean ten hours,
including the holiday leave allocation, and not anything less. To require the
[Union] to supplement holiday leave with additional leave to equal ten hours
is in contrast to the signed MOU[.] . . . Under the MOU, when an officer
works on a prescheduled holiday the officer should be receive ten hours of
pay, if a regular workday is now defined by the change in contract terms as
ten consecutive hours. Per the MOU, the definition of workday and the
meaning of regular straight time now means ten hours instead of eight hours.
The ALJ concluded “as a matter of law” that the University changed the definition
of a workday to ten hours and that the change applied “to the allocation of holiday leave[.]”
The ALJ determined that the change applied to the application and accrual of holiday leave
for officers who used holiday leave or who worked on a prescheduled holiday after the
schedule change. The ALJ ordered: (1) that the University define a workday for sworn
police officers as ten hours; (2) that the parties work to determine the officers affected by
the schedule change and to determine the number of non-holiday leave hours used by the
officers; and (3) that, once the parties determined the non-holiday leave hours used, the
University “credit the applicable hours to the affected officers.”
Proceedings in the Circuit Court
On November 14, 2018, the University filed in the circuit court a petition for judicial
review. On April 25, 2019, the circuit court conducted a hearing. At the conclusion of the
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hearing, the circuit court ruled from the bench, concluding that Article 11 of the MOU,
which authorized the right to file a grievance in the event of an alleged violation or
disagreement over any provision of the MOU, placed the dispute outside of the fringe
benefit clause and made it proper for the ALJ to hear the dispute about holiday leave. As
to the merits of the dispute, the circuit court ruled that the police department had the
authority to make the schedule changes, but ruled in favor of the Union, stating “that the
[MOU] says that a day is a day is a day.” The circuit court stated that the only remaining
matter was whether it had the authority to grant additional hours of holiday leave—i.e.,
whether it had the authority to grant the Union the relief that it requested—or whether only
the Board of Regents had the power to do so. The circuit court indicated that it would issue
its ruling on that matter after additional research.
On May 2, 2019, the circuit court issued an order affirming in part and reversing in
part the ALJ’s decision. In the order, the circuit court affirmed the ALJ’s decision with
respect to the conclusion that the University unilaterally changed the definition of
“workday” to ten hours, and that the change affected the allocation of holiday leave for the
officers. The circuit court reversed the ALJ’s decision with respect to all other
determinations. The circuit court found that, pursuant to ED § 12-105, the Board of
Regents had “the sole authority to propose budgetary changes” that affect the University
and that neither it nor the ALJ could “issue an order that ha[d] the effect of increasing the
budget of the University System.”
On May 29, 2019, the Union noted an appeal.
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Opinion of the Court of Special Appeals
On May 5, 2020, in an unreported opinion, the Court of Special Appeals vacated the
circuit court’s judgment and remanded the case to the circuit court with instruction to
remand to the ALJ to dismiss the grievance proceeding. See Keith Merryman and Fraternal
Order of Police Lodge 146 v. University of Baltimore, No. 649, Sept. Term, 2019, 2020
WL 2128840 (Md. Ct. Spec. App. May 5, 2020). On May 28, 2020, the University moved
to have the opinion reported. On July 13, 2020, the Court of Special Appeals issued a
reported opinion. See Merryman, 246 Md. App. 544, 231 A.3d 498.
The Court of Special Appeals held that the ALJ lacked the authority to make any
findings of fact or conclusions of law because the ALJ lacked jurisdiction over the dispute
regarding holiday leave. See id. at 560, 231 A.3d at 508. The Court of Special Appeals
rejected the Union’s contention that, although the dispute did not meet ED § 13-201’s
definition of “grievance,” other language in the MOU expanded the scope of grievances to
include the dispute about holiday leave. See id. at 556, 559, 231 A.3d at 505, 507.
According to the Court of Special Appeals, the Union’s argument “centered on its belief
that the parties could and did confer jurisdiction upon the [ALJ] by expanding the scope of
grievances subject to the statutory procedures incorporated into the parties’ agreement.”
Id. at 559, 231 A.3d at 507. The Court of Special Appeals rejected that argument,
explaining:
The scope of the dispute-resolution mechanism provided for in the
[MOU] between [the Union] and the University was fixed by the General
Assembly. [The Union]’s suggestion that the parties’ memorandum
effectively “amended” Educ. § 13-201(c) to expand the scope of issues
grievable under the Educ. § 13-203 procedure is conceptually untenable. It
- 23 -
is “widely acknowledged” that “parties cannot confer jurisdiction, in its
fundamental sense, upon a court by consent.” Stewart v. State, 287 Md. 524,
527–28, 413 A.2d 1337 (1980); see also State v. Walls, 90 Md. App. 300,
305, 600 A.2d 1165 (1992) (“Jurisdiction over the subject matter cannot be
conferred by consent of the parties ....”). For the same fundamental reasons,
it seems clear that parties cannot expand the jurisdiction of an administrative
agency by contract. We have no reason to believe that the legislature
intended that a state college or university could modify by contract the limits
imposed upon the grievance process by Educ. § 13-201(c). If the General
Assembly had intended to make these statutorily prescribed limits a mere
default, it could have said so.
Merryman, 246 Md. App. at 559, 231 A.3d at 507-08 (ellipses in original).
The Court of Special Appeals observed that, even if the parties could, by agreement,
expand the jurisdiction given by the General Assembly to the ALJ, the Union agreed that
it could not grieve a complaint about the general level of fringe benefits, as set forth in ED
§ 13-201(c). See id. at 560, 231 A.3d at 508. The Court of Special Appeals determined
that, “[c]learly, a dispute about the number of holiday-leave hours to which University
police are entitled ‘pertains to the general level of . . . fringe benefits’ provided to the
officers.” Id. at 560, 231 A.3d at 508 (ellipsis in original). The Court of Special Appeals
was unpersuaded by the Union’s “attempt to recast the dispute—stressing that the officers
seek only ‘to determine how many hours are in a holiday[.]’” Id. at 560, 231 A.3d at 508.
The Court of Special Appeals explained:
What [the Union] sought—and what the [ALJ] ultimately awarded—was that
University police officers would receive twenty-two more hours of annual
paid holiday leave than the University currently awards employees. To
repurpose a phrase from Justice Elena Kagan, “[i]f that does not count as
[‘pertain[ing] to the general level of . . . fringe benefits,’] we are hard pressed
to know what would.” Chaidez v. United States, 568 U.S. 342, 353, 133 S.Ct.
1103, 185 L.Ed.2d 149 (2013).
Merryman, 246 Md. App. at 560, 231 A.3d at 508 (some alterations in original). Because
- 24 -
the Court of Special Appeals held that the ALJ lacked jurisdiction to adjudicate the dispute,
the Court did not address the merits of the ALJ’s decision or the propriety of the remedy
that the ALJ ordered. See id. at 560, 231 A.3d at 508.
Petition for a Writ of Certiorari
On August 28, 2020, the Union petitioned for a writ of certiorari, raising the
following two issues:
1. Does the Office of Administrative Hearings have jurisdiction when
the parties have contractually agreed to submit grievances regarding the
interpretation of their collective bargaining agreement to the Office for
adjudication?
2. Did the Court err in finding that because the remedy would involve
awarding additional leave hours, the grievance constituted a complaint
pertaining to the “general level of fringe benefits” prohibited by ED § 13-
201(c)?
On October 6, 2020, this Court granted the petition. See Merryman, 471 Md. 101, 240
A.3d 852.
DISCUSSION12
The Parties’ Contentions
Before this Court, the Union and the University repeat the arguments made before
the ALJ, in the circuit court, and before the Court of Special Appeals. The Union argues
that it did not seek to dispute the general level of fringe benefits, but rather challenged the
University’s interpretation of the number of hours in a holiday, which is a dispute about
the terms of the contract. The Union acknowledges that “there is no dispute that holiday
12
Although the Union raised two issues in the petition for a writ of certiorari, we
address the issues together.
- 25 -
leave is a term and condition of employment and a fringe benefit subject to the collective
bargaining process.” (Cleaned up). The Union argues, though, that, rather than seeking an
increase in holiday leave, it has alleged that, under the MOU, the number of hours in a
holiday should be the same as the number of hours in a workday.
The University responds that the complaint brought by the Union is prohibited
because it is a dispute concerning the general level of fringe benefits to which members of
the Union are entitled. The University argues that it is undisputed that if the ALJ’s decision
is affirmed, the result is an increase in paid holiday leave, i.e., that “the general level of
holiday leave hours, a fringe benefit, would be increased for every officer.” The University
maintains that the Union’s characterization of the complaint as one involving a contractual
dispute concerning the meaning of the term “holiday” does not alter the circumstance that
the complaint is a dispute about the general level of fringe benefits.
Standard of Review
On appeal of a judgment rendered on judicial review of a decision of an
administrative agency, this Court “review[s] directly the action of the agency, rather than
the decision of the intervening reviewing courts.” Md. Ins. Comm’r v. Central Acceptance
Corp., 424 Md. 1, 14, 33 A.3d 949, 957 (2011) (citation omitted). “This Court reviews an
administrative agency’s decision under the same statutory standards as the [c]ircuit
[c]ourt.” Motor Vehicle Admin. v. Barrett, 467 Md. 61, 68, 223 A.3d 589, 594 (2020)
(cleaned up). “It is not this Court’s role to substitute its judgment for the expertise of those
persons who constitute the administrative agency.” Id. at 69, 223 A.3d at 594 (cleaned up).
Ordinarily, “the court reviewing a final decision of an administrative agency shall
- 26 -
determine (1) the legality of the decision and (2) whether there was substantial evidence
from the record as a whole to support the decision.” Id. at 69, 223 A.3d at 594 (cleaned
up). This Court reviews an agency’s legal conclusions without deference “for correctness.”
Schwartz v. Md. Dep’t of Nat. Res., 385 Md. 534, 554, 870 A.2d 168, 180 (2005) (citation
omitted). We have stated, though, that “[t]he legal conclusions of an administrative agency
that are premised upon an interpretation of the statutes that the agency administers are
afforded great weight.” Gore Enterprise Holdings, Inc. v. Comptroller of Treasury, 437
Md. 492, 505, 87 A.3d 1263, 1270 (2014) (cleaned up).
Analysis
Here, we hold that, under Article 11 of the MOU, which incorporates the grievance
procedures set forth in ED §§ 13-201 to 13-207, including the definition of a “grievance”
set forth in ED § 13-201(c), the complaint brought by the Union concerning holiday leave
does not present a grievable issue because it is a dispute that “pertains to the general level
of . . . fringe benefits, or to other broad areas of financial management and staffing[.]”
Holiday leave is a fringe benefit and the complaint concerning the number of hours of
holiday leave to which officers are entitled—which essentially requested that each officer
receive an additional twenty-two hours of holiday leave per year—is a complaint pertaining
to the general level of fringe benefits provided to officers and as such is not a grievable
issue. We affirm the judgment of the Court of Special Appeals—which remanded the case
to the ALJ to dismiss the grievance proceeding—albeit for a slightly different reason.
As an initial matter, we note that the issues in this case are not issues of jurisdiction
in a traditional sense. See, e.g., Kent Island, LLC v. DiNapoli, 430 Md. 348, 362-63, 61
- 27 -
A.3d 21, 29 (2013) (“Jurisdiction embraces two distinct concepts: (i) the power of a court
to render a valid decree, and (ii) the propriety of granting the relief sought. Whether a court
has fundamental jurisdiction, or the power, or authority, to render a valid final judgment,
is determined by the applicable constitutional and statutory provisions.” (Cleaned up)). At
issue in this case is whether the dispute about holiday leave constituted a grievable issue
under the MOU and the statutory grievance procedures, which were incorporated into the
MOU. Although the first question raised in the petition for a writ of certiorari is phrased
in terms of whether the Office of Administration Hearings had jurisdiction over the
complaint and the Court of Special Appeals held that the ALJ lacked jurisdiction over the
dispute, the question is really whether the complaint about holiday leave constituted a
grievable issue. The short answer to that question is no—the complaint about holiday leave
does not constitute a grievable issue, as we explain.
With respect to grievances between employees and the University, ED § 13-203(d),
which outlines the Step Three grievance procedure, expressly provides that an aggrieved
employee may submit a grievance either to arbitration or to the Chancellor, who can
“delegate this responsibility to the Office of Administrative Hearings in accordance with
Title 10, Subtitle 2 of the State Government Article.” In other words, ED § 13-203(d)
provides an ALJ with jurisdiction to hear a grievance at Step Three. The power or
authority, i.e., jurisdiction, of an ALJ to hear a grievance is different from the question of
whether a dispute involves a grievable issue under ED § 13-201(c). As part of the ALJ’s
authority to hear a dispute that has gone through Step One and Step Two of the grievance
process and reached Step Three, upon review, an ALJ has the authority to determine
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whether or not the dispute in fact involves a grievable issue and, if not, dismiss the
complaint.
On a different matter, it is worth noting that the definition of “grievance” set forth
in ED § 13-201(c) is expressly adopted and incorporated into the MOU, i.e., the definition
of “grievance” is the same under both the statute and the MOU. ED § 13-201(c) defines a
“grievance” as “any cause of complaint arising between a classified employee or associate
staff employee and his employer on a matter concerning discipline, alleged discrimination,
promotion, assignment, or interpretation or application of University rules or departmental
procedures over which the University management has control.” ED § 13-201(c) also
provides that, “if the complaint pertains to the general level of wages, wage patterns, fringe
benefits, or to other broad areas of financial management and staffing, it is not a grievable
issue.” In the MOU, the parties did not create a new definition of “grievance” or purport
to otherwise depart from the statutory grievance procedure that excludes issues related to
the general level of fringe benefits and broad area of financial management as not
grievable. As such, a complaint may well involve a dispute that arises between an
employee and the University on a matter concerning discipline, alleged discrimination,
promotion, and the like, but may nonetheless possibly be excluded because the complaint
involves, for example, the general level of fringe benefits or other broad area of financial
management.
Herein, we address primarily the exclusionary language contained in ED § 13-
201(c), namely, that a complaint “is not a grievable issue” subject to the grievance
procedure “if the complaint pertains to the general level of . . . fringe benefits, or to other
- 29 -
broad areas of financial management and staffing[.]” In this case, the question is what
constitutes a fringe benefit. Neither the MOU nor ED §§ 13-201 to 13-207 specifically
define the term fringe benefit. Black’s Law Dictionary, though, defines a “fringe benefit”
as “[a] benefit (other than direct salary or compensation) received by an employee from an
employer, such as insurance, a company car, or a tuition allowance.” Fringe Benefit,
Black’s Law Dictionary (11th ed. 2019). Similarly, Merriam-Webster defines a “fringe
benefit,” in pertinent part, as “an employment benefit (such as a pension or a paid holiday)
granted by an employer that has a monetary value but does not affect basic wage rates[.]”
Fringe Benefit, Merriam-Webster (2021), available at https://www.merriam-webster.com/
dictionary/fringe%20benefit [https://perma.cc/HX6R-338S]. It is clear that holiday leave
is a fringe benefit because it is a benefit, other than wages, received by an employee from
an employer. Indeed, even the Union acknowledges this basic premise, stating on brief in
this Court that “there is no dispute that holiday leave is a term and condition of employment
and a fringe benefit subject to the collective bargaining process.” (Cleaned up).
Although the Union acknowledges that holiday leave is a fringe benefit, the Union
nonetheless contends that it is not challenging the general level of fringe benefits accorded
police officers but rather is engaged in a contractual dispute about the interpretation of the
terms of the MOU. The very substance of the Union’s complaint, though, demonstrates
that it is a complaint about the general level of fringe benefits provided to its members.
According to the Union, after the schedule change, the University did not credit officers
“with the appropriate amount of holiday leave” and the Union sought to have a workday
(and by extension, a holiday) defined as ten hours. In essence, the Union sought twenty-
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two additional hours of holiday leave per year for all officers (from eighty-eight hours of
holiday leave to 110 hours), i.e., an increase in the general level of a fringe benefit. We
are not persuaded by the Union’s characterization of the dispute as seeking only to
determine how many hours are in a holiday and not seeking to challenge the general level
of fringe benefits. It is plain that what the Union sought, and what the ALJ actually
awarded, was an increase in the number of hours of paid holiday leave that officers receive
annually—not merely a determination as to the number of hours in a holiday or the number
of hours in a workday.
More specifically, to the extent that the Union contends that its complaint concerned
days, not hours, and that crediting holidays at the same rate as workdays is the relief
requested, this is undoubtedly a request for an increase in the amount of paid holiday leave
per year across the board for all officers—an increase of twenty-two additional hours per
year per officer. To be sure, Section 1 of Article 15 of the MOU states that officers are
eligible to earn eleven holidays per year, or twelve holidays during a general or
congressional election year. Policy VII-7.30 provides the same. In other words, it is
accurate that a holiday in the MOU and Policy VII-7.30 is referred to as a day, and not in
hours. And, we are aware that the Union has contended that in order to take a holiday off,
an officer may be required to supplement holiday leave time with some other form of leave
time to take a full ten hours off and that at some point after exhausting the eighty-eight
hours of holiday leave an officer will be required to use some other form of leave.
Nevertheless, at bottom, what the Union sought—to have a holiday defined as consisting
of ten hours—would have had the effect of increasing holiday leave by an additional
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twenty-two hours per year for all officers of the Union. Unless the number of hours an
officer was required to work or the hours allotted to other types of leave were reduced (and
they were not), this change would have increased the number of paid hours per year over
the 2,080 paid hours that currently exist and would have affected the general level of fringe
benefits provided to the officers and, indeed, would have resulted in increased cost to the
University and the University System of Maryland.13
Just as the schedule change did not result in a decrease in the number of hours an
officer is required to work a year, it also did not result in an increase in the number of hours
an officer is required to work in a year, which is a circumstance that may have supported
an argument that increasing the number of holiday leave hours was equitable. Even under
this potential scenario, though, the Union’s request would still have been a request for an
increase in the general level of a fringe benefit. But this is not what occurred; the officers
were not required to work additional hours under the schedule change. Instead, due to the
schedule change, officers now have an additional fifty-two days off per year—they work
four ten-hour shifts per week rather than five eight-hour shifts and now have the
opportunity for three days off per week.
We are wholly unpersuaded by the Union’s contention that the complaint involved
13
By seeking an increase of holiday leave hours annually for the officers, the
complaint obviously concerned an area of financial management, as it involved increasing
paid time off for all officers and would likely have implicated adjustments involving the
budget and financial management of the University. Under ED § 13-201(c) and the MOU,
a complaint pertaining to either “the general level of . . . fringe benefits, or to other areas
of financial management and staffing[]” is not a grievable issue.
- 32 -
a contract dispute and that a dispute about the interpretation of a provision of the MOU is
grievable regardless of whether it concerns the general level of fringe benefits. Casting the
complaint as one involving a contractual dispute concerning the interpretation of the terms
“workday” and “holiday” does not change the circumstance that the substance of the
complaint seeks an increase in holiday leave hours for all officers and as such concerns the
general level of fringe benefits and is excluded under ED § 13-201(c) as not a grievable
issue. From our perspective, although Article 11 of the MOU provides that “[i]n the event
of an alleged violation or disagreement over any of the provisions of this MOU,” officers
“shall have the right to file a grievance in accordance with” ED §§ 13-201 to 13-207, this
general language would not supersede the definition of what constitutes a grievance under
ED § 13-201(c), which is expressly incorporated into the MOU. To hold as the Union
urges would be to permit a party to bring a complaint about the general level of fringe
benefits, yet avoid the applicability of the exclusionary language in ED § 13-201(c) and in
this case the MOU, by simply alleging that the complaint is really a contract interpretation
dispute. This would not be a logical or permissible result. Simply because a party
characterizes a complaint as a dispute about an agreement’s terms should not permit the
party to make an end run around express statutory exclusions adopted in the agreement.
To do so would render the exclusions pertaining to the general level of fringe benefits and
other areas meaningless.
In addition to being expressly excluded as a grievable issue, we observe that the
dispute about holiday leave raises an issue as to whether it is a complaint concerning the
“interpretation or application of University rules or departmental procedures over which
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the University management has control.” ED § 13-201(c). We are aware that, in its
opinion, the Court of Special Appeals noted:
The University contends the reason why holiday-leave hours are a
matter beyond its management’s control is because the University System’s
board of regents establishes the number of holiday-leave hours awarded to
university police. On the record before us, we cannot accept this assertion.
This seemingly simple issue—whether the board or the management of
member institutions determines the number of leave hours employees accrue
for each holiday—does not appear to have been resolved anywhere in the
three-step grievance procedure.
In its brief, the University asserts that, at the administrative hearing,
counsel for [the Union] conceded, in the University’s words, “that the
[University System of Maryland] board of regents sets holiday leave for the
entire [University System of Maryland].” We read the record differently.
As we understand the portion of the administrative law judge’s decision cited
by the University for support, [the Union] conceded that the board of regents
determines when the guaranteed eleven holidays are observed each year. To
agree that the board of regents sets the dates on which holidays are observed
is not to agree that the board of regents sets the number of holiday-leave
hours awarded for each holiday.
Merryman, 246 Md. App. at 558 n.6, 231 A.3d at 507 n.6 (emphasis in original). We agree
with the Court of Special Appeals that the issue of whether the Board of Regents or the
University determines the number of holiday leave hours does not appear to have been
decided by the ALJ at Step Three of the grievance procedure.
Despite the record demonstrating that there was testimony at the evidentiary hearing
concerning the necessity for approval by the Board of Regents for an increase in the number
of holiday leave hours for the officers, the ALJ did not make a factual finding concerning
the matter. At the evidentiary hearing before the ALJ, Chief Ellis testified that, both before
and after the schedule change, officers worked forty hours per week and 2,080 hours per
year. Maher testified to the same. Maher also testified that officers continued to accrue
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leave in the same amount (at the same rate) as before the schedule change. What can be
gleaned from this testimony is that there are 2,080 total hours (work and leave hours) set
aside by the University and the Board of Regents for which all officers of the Union must
be paid per year.
Maher testified that increasing holiday leave by twenty-two hours constitutes “a
fringe benefit impact” for which there would be “a financial increase, benefit cost increase,
or fringe benefit cost increase for the university per officer,” and the University would
necessarily be required to get approval from the Board of Regents (and support from the
University System of Maryland and the State Attorney General’s Office). Maher explained
that approval from the Board of Regents would be required “because it would increase the
cost to the institution, and [] would provide a different fringe-benefit program for a subset
of employees than any other employee in that institution.”
With Maher’s uncontradicted testimony about the need for Board of Regents’s
approval and the financial impact of increasing the number of holiday leave hours, it seems
clear that granting the Union’s request for additional holiday leave hours would implicate
a budgetary matter necessary for approval by the Board of Regents. But, the ALJ did not
make a factual finding on this point one way or the other. On this issue, in the written
decision, rather than making a factual finding, the ALJ summarized Maher’s testimony,
stating: “[T]he holiday leave hours increase would redefine fringe benefits and cause a
financial increase that can only be changed by the [University System of Maryland] Board
of Regents. However, [] Maher also testified the allocation of holiday leave hours in eight-
hour increments is not a [University System of Maryland] policy.” The observation by
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Maher that the allocation of holiday leave in eight-hour increments is not a policy of the
University System of Maryland does not mean that the Board’s approval is not necessary
to increase holiday leave hours. Rather, Maher’s observation is consistent with the change
that the University made at Step Two of the grievance procedure permitting the officers to
use holiday leave in increments fewer or greater than eight hours. Nonetheless, in the
absence of a factual finding on the matter, like the Court of Special Appeals, we will
exercise restraint and not explicitly conclude that an increase in holiday leave for officers
was a matter beyond the control of University management.
As a final matter, we observe that the Union appears to suggest that if we conclude
that the complaint about holiday leave involves a dispute about the general level of fringe
benefits and thus does not involve a grievable issue, officers will be prevented in the future
from raising a grievance involving wages, hours, or benefits. The Union contends that
“[a]lmost any grievance that arises out of a disagreement between the [Union] and the
University about the MOU’s provisions will involve wages, hours, and benefits, since these
are the necessary subjects of bargaining that the MOU memorializes.” The Union argues
that it should be permitted to use the grievance procedure to challenge the University’s
interpretation of the MOU because to hold otherwise would permit the University to
unilaterally interpret a contract “so long as some wage or benefit is at issue.” We do not
agree. Our holding in this case—that the dispute about holiday leave is not a grievable
issue—does not prevent officers from raising a complaint about wages, hours, or benefits
through the grievance procedure. A complaint by an officer “concerning discipline, alleged
discrimination, promotion, assignment, or interpretation or application of University rules
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or departmental procedures over which the University management has control” remains a
“grievance” under ED § 13-201(c) and the MOU and is subject to the three-step grievance
procedure. Contrary to the Union’s suggestion, our holding in this case does not prohibit,
for example, an employee from bringing a grievance concerning a demotion and an
attendant pay decrease. Such grievances concern an employee’s specific circumstances
and do not “pertain[] to the general level of wages, wage patterns, fringe benefits, or to
other broad areas of financial management and staffing” like a complaint seeking an across
the board increase in holiday leave does.
For all of the reasons explained above, we hold that the complaint about holiday
leave does not present a grievable issue under ED § 13-201(c) and the MOU. As such, we
need not address the merits of the complaint. We affirm the judgment of the Court of
Special Appeals, which remands the case to the ALJ for the ALJ to dismiss the grievance
proceeding.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS AFFIRMED. PETITIONERS TO PAY
COSTS.
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