Grievance Over Shop Stewards Not Preempted By Bill Of Rights

Montgomery County, Maryland and Lodge 35 of the Fraternal Order of Police (FOP) are parties to a collective bargaining agreement. On August 11, 2009, the FOP filed a grievance with an arbitrator pursuant to its collective bargaining agreement alleging that the County violated the Agreement when it unilaterally terminated 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 CBA defines a grievance as “a dispute or disagreement as to the interpretation or application of the terms and conditions of the Agreement.”

While the Agreement does not expressly mention the training of shop stewards, the FOP argued that the previous policy amounted to a past practice and was thereby incorporated into the Agreement and preserved under the “Maintenance of Standards/Retention of Benefits and Conditions” provision. The County filed a motion to dismiss the grievance, arguing that the state’s Law Enforcement Officers Bill of Rights (LEOBR) governed the presence of individuals during an interrogation and that the Bill of Rights preempted collective bargaining and arbitration on matters relating to the Bill of Rights.

The County argued that the proper procedure for asserting the denial of an officer’s rights under the Bill of Rights was an application for a show cause order in court. The FOP filed in opposition and argued that the grievance had “nothing to do with the LEOBR” because the issue involved the union’s right to train its employees and did “not deal with the procedural guarantees regarding the right of a police officer to representation at an interrogation.” When the Arbitrator agreed with the FOP and ruled that the grievance was not preempted, the County challenged the Arbitrator’s decision in court.

The Maryland Supreme Court held that the grievance was subject to arbitration. The Court reasoned that “the Bill of Rights was enacted in 1974 with the primary purpose of guaranteeing certain procedural safeguards to law enforcement officers during any investigation or interrogation that could lead to disciplinary action, demotion, or dismissal. From the plain language of the statute it is clear that the grievance at issue does not implicate the subject and material of the LEOBR because the statutory scheme is focused exclusively on the rights of law enforcement officers, and, under the facts, the FOP is attempting to assert its own right under the CBA rather than that of any of its bargaining unit members.

“Indeed, the LEOBR does not provide a union with a right to file an application for a show cause order on its own behalf, as it is not a protected ‘officer’ under that statute. Therefore, if the union were asserting, on behalf of a union member, that the presence of a shop steward in-training is somehow a right encompassed within the LEOBR, then any contractual grievance would be preempted by the statutory remedy of an application for a show cause order. The only recourse for the FOP to allege the denial of a right owed to the union, rather than an individual officer or the bargaining unit, however, is to file a contractual grievance under the CBA.”

Montgomery County, Maryland v. Fraternal Order of Police, Montgomery County Lodge 35, Inc., 2012 WL 3553314 (Md. 2012).