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Swift v. University of Maryland

Court of Special Appeals of Maryland

November 2, 2018

THOMAS SWIFT
v.
UNIVERSITY OF MARYLAND, COLLEGE PARK

          Circuit Court for Prince George's County Case No.: CAL-16-36576

          Nazarian, Arthur, Shaw Geter, JJ.

          OPINION [*]

          Nazarian, J.

         This case turns on whether the University of Maryland, College Park (the "University") could terminate Thomas Swift, a regular, exempt employee and a member of the American Federation of State, County, and Municipal Employees (the "Union") with notice and without cause. The University's authority to do so depends on whether the collective bargaining agreement between the Union and the University abrogates the University's employment policy, as Mr. Swift argues, or whether the two can exist in parallel, as the University contends.

         On December 13, 2013, the University notified Mr. Swift that it was terminating him without cause, and, pursuant to Board of Regents Policy, VII-1.22: Policy on Separation for Regular Exempt Employees (the "Policy"), gave him six months' notice (and pay) before the termination took effect. One week later, Mr. Swift filed a grievance pursuant to Maryland Code, § 13-203(b)(1) of the Education Article ("ED"). The University issued a Step Two opinion and affirmed Mr. Swift's termination. Mr. Swift submitted his grievance to advisory arbitration and the arbitrator ruled in his favor. But the University delegated the final decision to an administrative law judge ("ALJ"), who upheld the termination. Mr. Swift sought judicial review in the Circuit Court for Prince George's County, which affirmed. He argues on appeal that, as a matter of statutory law and general principles of labor law, the collective bargaining agreement and University policies can't coexist. We disagree and affirm.

         I. BACKGROUND

         On August 27, 2007, Mr. Swift began working in the University's School of Architecture as a Model Shop Supervisor. In that role, he managed the University wood shop and supported the School of Architecture's Studio Teaching Program. He was classified as a regular, full-time exempt employee and, therefore, a member of the Union and a party to the collective bargaining agreements between the University and the Union.

         The collective bargaining agreement at issue is the Memorandum of Understanding for Exempt Employees (the "MOU"). The MOU has been modified several times; the most recent version-the version in effect when Mr. Swift was terminated-was updated in 2010. Two portions of the MOU are relevant to this case. First, since 2004, the MOU (Article 1, Section 3(A)) has contained language recognizing that University employment policies remain in effect unless they conflict with the MOU:

Except as specifically provided for in this Memorandum of Understanding, all University System of Maryland and University of Maryland, College Park policies, procedures, rules, practices, and conditions of employment governing bargaining unit employees ("Policy") are and shall remain in full force and effect. Where a portion of any existing Policy is modified by this MOU, the remainder of that Policy not in conflict with the MOU remains in full force and effect.

Second, Article 15 of the MOU, entitled "Disciplinary Actions," contains a "progressive discipline" program. The opening section states that "[t]he University subscribes to the tenets of progressive discipline, where appropriate," and, a sentence later, that "[n]o employee shall be disciplined without cause." Subsequent sections define the forms of discipline, the employee's right to union representation, the University's responsibilities, and the time limits within which the University must impose the various forms of discipline. Section 5, which defines the time schedule, also provides that the MOU does not apply to the notice provisions of the Policy or to another section of the MOU not applicable here:

[T]his schedule shall have no applicability to either separation under the Notice Termination provisions of Board of Regents Policy VII-1.22 or Rejections on Probation under that Policy or Article 8 of this MOU.

         The University employment policy at issue in this case is the one referenced in the Board of Regents Policy, VII-1.22. In a section with the heading "General Notice," the Policy describes regular, exempt employees as "at-will":

Employment for regular USM employees in exempt positions is on at at-will basis. This means that, subject to applicable laws and policies, the employment relationship may be terminated at any time by either the employee or the University, consistent with [the separation provision] of this policy.

(Emphasis added.) Then, in a section entitled "Period of Notice," the Policy states that "[a]n employee may be involuntarily separated and shall be provided with a defined period of notice." The employee's years of service determine the length of the notice period, which for Mr. Swift, who had six years of service, was six months. The Policy allows the University to place employees on paid administrative ...


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