Arbitrator’s Award That Officers Be Promoted In Rank Order “Not Completely Irrational”

Prince George’s County, Maryland, and Lodge 89 of the Fraternal Order of Police are parties to a collective bargaining agreement. After the Chief of Police issued a memorandum announcing that he would make decisions regarding promotions in the Police Department using a “Rule of 3” (that is, the Chief would choose from the top three ranked candidates, rather than promote the top-ranked candidate as his predecessors had done), Lodge 89 filed a grievance.

Though the County asserted that the matter was not subject to arbitration, the grievance was heard by an arbitrator. The Arbitrator found that the County had violated the collective bargaining agreement by instituting the “Rule of 3,” and ordered that promotions of eligible police officers be made on the basis of rank alone. The County challenged the Arbitrator’s decision in court.

The Maryland Court of Appeals upheld the Arbitrator’s decision. Though the Court found that the case was “moot” because the collective bargaining agreement had expired in 2005, it nonetheless decided to address the merits of the County’s arguments because “this case involves the relationship between a county government and its employees, and as such, is an important matter of public concern.”

On the merits, the Court turned first to the County’s argument that the Arbitrator’s decision exceeded his jurisdiction because the collective bargaining agreement did not specifically contain a “Rule of 1,” and thus the grievance was not subject to arbitration. The Court pointed to the testimony of a former chief of police that he had, on occasion, wanted to promote an officer not at the top of the eligibility list, but understood that the collective bargaining agreement prohibited him from doing so until he first promoted those candidates ranked higher on the eligibility list.

According to other testimony at the arbitration hearing, for at least 20 years no candidate for promotion had been promoted out of rank order.

The Court found that the arbitration clause in the contract “does not provide for arbitration only concerning matters mentioned expressly within the four corners of the collective bargaining agreement. The arbitration clause applies to all disputes regarding the interpretation of the agreement.” In other words, the Court concluded that the arbitration clause could apply to past practices developed under the scope of the contract.

The Court next addressed the County’s argument that the arbitration award in this case involved a “mistake so gross as to work a manifest injustice,” and contained a “palpable mistake of law or fact.” The Court was unconvinced, noting that “we find nothing apparent on the face of the award to support that contention or to support a conclusion that the Arbitrator’s decision was completely irrational. The Arbitrator found that the promotions article in the contract was premised on a Rule of 1. The Arbitrator based this conclusion on the language of the contract and credible evidence regarding the past practices of the Department in promoting police officers. Such reasoning was not ‘completely irrational.’”

Prince George’s County v. Fraternal Order of Police, Lodge 89, 2007 WL 14586 (Md.App. 2007).

This article appears in the May 2007 issue