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Board of Education of Howard County v. Howard County Education Association-ESP, Inc.

Court of Appeals of Maryland

December 21, 2015

BOARD OF EDUCATION OF HOWARD COUNTY
v.
HOWARD COUNTY EDUCATION ASSOCIATION-ESP, INC

Argued October 6, 2015.

Page 69

Circuit Court for Howard County. Case No. 13-C-12-090823, Case No. 13-C-12-091545. Certiorari to the Court of Special Appeals (Circuit Court for Howard County). Richard S. Bemhardt JUDGE.

ARGUED BY Judith S. Bresler (Eric C. Brousaides, Camey, Kelehan, Bresler, Bennett & Scherr, LLP of Columbia, MD) on brief.

Brief of Maryland Association of Boards of Education as Amicus Curiae. Andrew W. Nussbaum, Esquire Nussbaum Law, LLC.

Brief of Amicus Curiae Public School Superintendents Association of Maryland in Support of Petitioner. Edmund J. O'Meally, Esquire Andrew G. Scott, Esquire Pessin Katz Law, P.A.

Brief of Attorney General of Maryland as Amicus Curiae. Steven M. Sullivan, Esquire Beatrice Nunez-Bellamy, Esquire Assistant Attorneys General FOR PETITIONER.

ARGUED BY Kristy K. Anderson (Damon R. Felton, Maryland State Education Association of Annapolis, MD) on brief FOR RESPONDENT.

ARGUED BEFORE Barbera, C.J., Battaglia, Greene, Adkins, McDonald, Watts, Harrell, Jr., Glenn T. (Retired, Specially Assigned), JJ.

OPINION

Page 70

[445 Md. 518] Barbera, C.J.

We decide in this case whether a local public school superintendent's decision to terminate a " noncertificated" employee--that is, an employee who does not have a professional teaching certificate issued by the Maryland State Board of Education--is a proper subject of binding arbitration pursuant to a collective bargaining agreement. In order to answer that [445 Md. 519] question we must resolve important questions concerning the interpretation and interplay of statutes affecting two State agencies, the Maryland State Board of Education and the Public School Labor Relations Board.

We shall answer those important questions and, applying those answers to the ultimate question posed by this case, we conclude that the termination of a noncertificated employee is a proper subject of binding arbitration pursuant to a collective bargaining agreement.

I.

The parties to this dispute are Petitioner Board of Education of Howard County

Page 71

(" Howard County Board" ) and Respondent Howard County Education Association-ESP, Inc. (" Association" ). The Association is the exclusive bargaining representative of non-supervisory, noncertificated employees of the Howard County Public School System. In the present case, the Association is acting on behalf of a school nurse who was terminated by the Howard County Public School System in January 2012.

The Association and the Howard County Board negotiated a collective bargaining agreement (" CBA" ) in July 2010. Article 4, entitled " Employee Rights," provides in Section 4.1 that " [n]o employee will be discharged without cause." Article 2 provides for a grievance process. Article 2 defines " grievance" as a dispute " involving the express provisions of the terms of" the CBA and establishes a three-step procedure.[1] [445 Md. 520] In the present case, the school nurse opted to challenge her termination by way of the grievance process. Upon completion of Step I she proceeded to Step II. At that juncture, the Superintendent of the Howard County Public School System, acting through a designee, denied the grievance on the ground that a superintendent's decision to terminate a noncertificated employee is an illegal subject of collective bargaining and therefore not subject to the grievance process set forth in the CBA. The Association, on behalf of the school nurse, made a demand for arbitration, which in Step III of the grievance process provides that " [t]he arbitrator's decision shall be final and binding on all the parties."

The Litigation

Upon receipt of the Association's demand, the Howard County Board filed a Motion for Injunctive Relief in the Circuit Court for Howard County, seeking to enjoin the arbitration. The Howard County Board argued that the final decision on the

Page 72

termination of a noncertificated employee is committed to the exercise of the superintendent's authority; [445 Md. 521] therefore, a dispute concerning the termination of that employee cannot be the subject of binding arbitration. The Association opposed the injunction.

The Circuit Court granted the Howard County Board preliminary injunctive relief and entered an order staying the arbitration to give both parties the opportunity to request an opinion from either or both the Maryland State Board of Education (" State Board" ) and the Public School Labor Relations Board (" PSLRB" ). The Howard County Board sought an opinion from the State Board. The Association sought an opinion from the PSLRB.

The State Board and the PSLRB issued conflicting opinions. We later detail the reasoning of the respective agencies. For now, however, it suffices to note that the State Board concluded that a provision of the Education Article authorizing the county school superintendent to make hiring decisions also, albeit impliedly, commits to the superintendent the exclusive authority to terminate, thereby rendering illegal the binding arbitration provision of the CBA. The PSLRB came to the opposite conclusion by reference to other provisions of the Education Article that permit binding arbitration of matters relating to the discipline and discharge of noncertificated employees. Therefore, according to the PSLRB, the binding arbitration provision of the CBA is not illegal.

Each party petitioned the Circuit Court for Howard County for judicial review of the respective opinions of the State Board and the PSLRB, and each party sought, in response to the other's petition, an order to enforce the opinion of the agency that ruled in its favor.[2] The Circuit Court, agreeing with the State Board's determination, entered orders that affirmed the decision of the State Board, reversed the decision of the PSLRB, and permanently enjoined the arbitration.

[445 Md. 522] The Association appealed to the Court of Special Appeals, which reversed the judgments of the Circuit Court. Howard Cty. Educ. Ass'n-ESP, Inc. v. Bd. of Educ. of Howard Cty., 220 Md.App. 282, 284, 103 A.3d 1060 (2014). The intermediate appellate court concluded in a thorough and well analyzed opinion that the State Board's opinion would " clearly be contrary to the statute's plain meaning" ; therefore, deference may not be afforded to the State Board in this case. Id. at 307 (internal quotation marks omitted). The Court of Special Appeals held that the PSLRB, not the State Board, is the entity with the jurisdiction to resolve the dispute; moreover, the PSLRB reasonably concluded that the sections of the Education Article concerning collective bargaining permit a local board to be bound to an agreement containing an arbitration provision for grievance matters. Id. at 305-06. The Howard County Board petitioned this Court for review.

We granted the Howard County Board's petition for writ of certiorari to address two questions,[ ...


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