By Keith J. Zimmerman
Principal, Kahn, Smith & Collins, P.A.
In two decisions in 2019, the Maryland Public School Labor Relations Board (“PSLRB”) ruled that the statute that provides for bargaining over “salaries, wages, hours, and other working conditions, . . . ” for noncertificated, non-professional employees meant that exclusive representatives could not lawfully bargain over 1) increasing the number of hours worked by teachers assistants and permanent substitutes[1] or 2) the minimum number of standard hours worked as well as the number of days and months worked.[2] Those practicing in the private sector and in other public sector arenas were left scratching their heads. How can this be? How can “hours” not mean “hours?” Do these decisions stand as law in Maryland public school labor relations? This article will endeavor to answer these questions.
Bargaining in Public School Labor Relations[3]
Educ. § 6-510(c)(1)(i) states: “On request, a public school employer . . . shall meet and negotiate with . . . representatives of the employee organization that is designated as the exclusive negotiating agent for the public school employees in a unit of the county on all matters that relate to [s]alaries, wages, hours, and other working conditions, including discipline and discharge of an employee for just cause . . . .” (emphasis added).[4]
If the parties disagree as to whether a proposal is a mandatory, illegal, or permissive subject of bargaining, § 6-510(c)(5) provides a unique and relatively rapid procedure for the PSLRB to issue a ruling with the hope that the parties can conclude bargaining in a timely manner:
- If a public school employer and an employee organization dispute whether a proposed topic for negotiation is a mandatory, a permissive, or an illegal topic of bargaining, either party may submit a request for a decision in writing to the Board for final resolution of the dispute.
(v) After receipt of … written briefs from the public school employer and the employee organization, the Board shall:
1. Consider the merits of each party’s arguments;
2. Render a decision determining whether the topic of negotiation is mandatory, permissive, or illegal; and
3. Issue the written decision to the parties within 14 days after receiving the written briefs.
(vi) 1. The Board may adopt regulations, guidelines, and policies to carry out its rights and responsibilities under this section.
2. To resolve disputes under this section, the Board shall develop a balancing test to determine whether the impact of the matter on the school system as a whole outweighs the direct impact on the employees.
PSLRB Decisions in Washington County and Anne Arundel County
Washington County
On March 11, 2019, Washington County Educational Support Personnel, Inc. (“WCESP”) filed with the PSLRB a Request to Resolve a Dispute as to Negotiability over, among other issues not relevant to this article, a proposal it had made concerning hours worked, number of days, and months worked by members of its bargaining unit. In response, the Board of Education of Washington County (“BOEWC”) took the position that the number of hours assigned to bargaining unit positions was either an illegal or permissive subject of bargaining. The PSLRB held that while hours was listed as a subject over which BOEWC was required to negotiate, per Educ. § 6-510(c)(1), it would be illegal for BOEWC to bargain over hours because negotiation over hours was “precluded by applicable statutory law.” The applicable statutory law relied upon by the PSLRB was Educ. § 4-103(a) and 6-201(f).[5] The PLSRB reasoned:
Because Sections 4-103(a) and 6-201(f) grant the County Board the express authority to set compensation for public school employees, the County Board is precluded from negotiating over the number of hours worked. This is due to the fact that the employees covered under the Negotiated Agreement are distinguishable from other salaried employees in that their compensation is inextricably linked to the number of hours that they work each day. Because the compensation of these hourly employees depends directly on the number of hours worked, negotiation over the number of hours worked would interfere with the County Board’s statutory authority under Sections 4-103(a) and 6-201(f) to set compensation.
Washington County at 9. Not surprisingly, a strong dissent was filed. The PSLRB ignored the basic rules of statutory construction: 1) The cardinal rule is to effectuate the intent of the legislature; 2) effect must be given to the plain and unambiguous meaning of a statute; 3) if the plain language is consistent with the statute’s goal and purpose, the inquiry should end with that language; 4) statutory language should be read so that no word or phrase renders any part of it meaningless, surplasage, superfluous, or nugatory; and 5) in parsing whether the plain meaning or ambiguity is the case, the relevant statutory scheme as a whole must be reviewed, as opposed to relying on a single provision.[6]
A petition for judicial review was filed in the Circuit Court for Washington County.[7] The court reversed the PSLRB and (correctly) applied the aforementioned rules of statutory construction. I t held that the language of § 6-510(c)(1) was unambiguous and clearly states “hours” as a mandatory subject of bargaining and that the plain language of “hours” encompasses negotiation over the minimum number of hours worked by hourly noncertificated employees. The court easily harmonized §§ 4-103(a) and 6-201(f) with § 6-510(c)(3).
While the PSLRB found that Md. Code Ann. Educ., 4-103(a) and 6-201(f) are to be applied to the case at hand to the exclusion of Md. Code Ann., Educ. 6-510, this Court finds that all three statutes exist harmoniously. It stands to reason that the Board of Education must have the authority to recognize a need with regard to employment and be able to respond to that need. Such authority is granted to the Respondent by Md. Code Ann., Educ. 4-103(a) and 6-201(f). These statutes give the Board of Education the power to appoint non-certificated personnel, set salaries, and determine qualifications, tenure, and compensation. Once the Board of Education has elected to use its power to act under Md. Code Ann., Educ. 4-103(a) and 6-201(f), the ability to negotiate certain terms established by the Board of Education such as but not limited to salaries, wages, hours, and other working conditions become available to the WCESP through the bargaining process under Md. Code Ann., Educ. 6-510. This Court finds that Md. Code
Ann., Educ. 4-103(a) and 6-201(f) do not create “applicable statutory law” that precludes the WCESP from negotiating hours worked.
Id. at 4-5. This case is presently on appeal to the Court of Special Appeals and the parties await a decision.[8]
Anne Arundel County
On March 15, 2019, the Secretaries and Assistants Association of Anne Arundel County (“SAAAAC”) filed a Request to Resolve a Dispute as to Negotiability with the PSLRB concerning a SAAAAC proposal to increase the number of hours worked by noncertificated teachers’ assistants and permanent substitutes. The county board initially took the position that there were insufficient funds in the budget to accommodate the request, but then changed its rationale to arguing that work hours were an illegal subject of bargaining based on the decision in Washington County.
The PSLRB found[9] that hours were an illegal subject of bargaining, and added to the rationale it employed in Washington County. It cited to Educ. § 6-510(c)(5)(vi)(2) which requires that a balancing test be used to determine if the impact of the matter in dispute on the school system as a whole outweighs the direct impact on teachers and other employees. The PSLRB cited several sections of the Education Article that highlight the State Board of Education’s power over educational policy, § 2-106(2); § 2-103(a); § 2-205(b)(1); § 2-205(g)(2), and other sections that highlight county boards of education’s control over educational matters (§ 4-101(A); § 4-108; § 5-101(a)(1); § 5-101(b)(2)(iii)). It held:
[N]egotiation over the number of hours worked by hourly employees has an impact on their compensation; however, requiring negotiation over this topic would directly interfere with ability of both the State Board and County Board to control educational policy. Such negotiations would also interfere with the County Board’s obligation to maintain a reasonably uniform system of public schools, and would impose an insurmountable burden on the County Board’s ability to prepare its budget and operate the school system. For these reasons, we find that negotiation over the number of hours worked by hourly employees has a greater direct impact on the school system as a whole than on teachers or employees, and, as a result, that the number of hours worked by hourly employees is an illegal topic of negotiation.
Anne Arundel at 5-6. Again, a strongly-worded dissent was filed.
A petition for judicial review was filed. The Circuit Court for Anne Arundel County reversed the PSLRB.[10] The court applied a similar analysis to that employed by the court in Washington County Educational Support Personnel.[11] The Court, held that the plain language of Educ. § 6-510(c)(1) unambiguously states that hours are a mandatory subject of bargaining and do not require a balancing test to interpret. It further held that §§ 4-103(a) and 6-201(f) are not “applicable statutory law” that make hours an illegal subject of negotiation because while those statutes give county boards authority in setting compensation, they only generally relate to hours worked by employees. If two statutory provisions arguably cover the same matter, and one is specific and one is general, the specific statutory provision is deemed applicable. Lumbermen’s Mut. Cas. Co. v. Ins. Com’r, 302 Md. 248, 268 (1985).
Conclusion
While the General Assembly gave the PSLRB the authority to decide disputes as to negotiability, this Board has twice read the word “hours” out of Educ. § 6-510(c)(1)(i). Two circuit courts reversed the Board. It is now up to the Court of Special Appeals to put this issue to rest. Stay tuned.
[1] Secretaries and Assistants Association of Anne Arundel County, Inc. v. Board of Education of Anne Arundel County, PSLRB Case No. N 2019-04 (“Anne Arundel County”).
[2]Washington County Educational Support Personnel, Inc., v. Board of Education of Washington County, PSLRB Case No. N 2019-03 (“Washington County”).
[3] Collective bargaining in public school labor relations is governed by two parallel statutes – one for certificated employees such as teachers and other professionals (Md. Code Ann, Educ. § 6-408), the other for noncertificated employees (Md. Code Ann., Educ. § 6-510). Further references to the Education article will be “Educ.” This article addresses Educ. § 6-510, but the issues and concerns raised by the cases may well apply to certificated employees because Educ. § 6-510 and Educ. § 6-408 contain similar language as to mandatory subjects of bargaining and identical language over what are illegal subjects of bargaining: “A public school employer may not negotiate the school calendar, the maximum number of students assigned to a class, or any matter that is precluded by applicable statutory law.” Educ. §§ 6-510(c)(3); 6-408(c)(3). These statutes were heavily amended by the Fairness in Negotiations Act of 2010. 2010 Md. Laws Ch. 325.
[4] The mandatory subjects of bargaining for certificated employees under Educ. §6-408(c)(i) are “[s]alaries, wages, hours and other working conditions, including procedures regarding employee transfers and assignments . . . .”
[5] “Section 4-103(a) of the Education Article states, ‘[o]n the written recommendation of the county superintendent and subject to the provisions of this article, each county board shall: (1) Appoint all principals, teachers, and other certificated and noncertificated personnel; and (2) Set their salaries.’ Section 6-201 (f) of the Education Article states, “Subject to the provisions of this article, the qualifications, tenure, and compensation of each appointee shall be determined by the county board.’” Washington County, at 9.
[6] Board of Educ. of Howard County v. Howard County Educ. Ass’n-ESP, Inc., 445 Md. 515, 533 (2015); Conaway v. State, 464 Md. 505, 532 (2019).
[7] Washington County Educational Support Personnel v. Board of Educ. of Washington County, No. C-21-CV-19-000328.
[8] Board of Educ. of Washington County v. Washington County Education Support Personnel, Inc., CSA -REG-022-2020.
[9] Secretaries and Assistant’s Association of Anne Arundel County, Inc., supra note 1.
[10] Secretaries and Assistant’s Association of Anne Arundel County, Inc. v. Board of Education of Anne Arundel County, Case No. C-02-CV-19-002371 (2020).
[11] See supra, note 7.
