PRINCE GEORGE‘S COUNTY POLICE CIVILIAN EMPLOYEES ASSOCIATION v. PRINCE GEORGE‘S COUNTY, Maryland on Behalf of PRINCE GEORGE‘S COUNTY POLICE DEPARTMENT.
No. 1, Sept. Term, 2015.
Court of Appeals of Maryland.
April 22, 2016.
135 A.3d 347
WATTS, J.
180
Josue Pierre, Associate Co. Atty. (Jared M. McCarthy, Deputy Co. Atty., M. Andree Green, Co. Atty., Upper Marlboro, MD), on brief, for respondent/cross-petitioner.
Argued and reargued before BARBERA, C.J., BATTAGLIA,* GREENE, ADKINS, MCDONALD, WATTS, and GLENN T. HARRELL, JR. (Retired, Specially Assigned), JJ.
WATTS, J.
This case raises an important issue of first impression in Maryland—namely, whether a county has the authority under the county‘s code to enter into a collective bargaining agreement requiring that, before a criminal investigative interview of one of the county‘s police civilian employees, the employee be advised of the right to have a union representative present at the interview—i.e., that the employee be advised of a Weingarten right in the collective bargaining agreement.
An employee‘s Weingarten right arises out of an employer-employee relationship where the employer subjects the employee to an investigatory interview. Generally, an employee‘s Weingarten right is the employee‘s right under the
This case emanates from the circumstance that Prince George‘s County (“the County“), Respondent/Cross-Petitioner, terminated the employment of Marlon Ford (“Ford“), a member of the Prince George‘s County Police Civilian Employees Association (“the Association“), Petitioner/Cross-Respondent, after a criminal investigation during which Ford was questioned regarding alleged crimes and an internal affairs investigation during which Ford was questioned regarding alleged misconduct as an employee. Following Ford‘s termination, the Association filed a grievance on Ford‘s behalf, and the parties participated in arbitration. The arbitrator vacated the County‘s termination of employment, imposed a thirty-day suspension instead, and granted Ford back pay. The arbitrator based the arbitration award, in part, on the determination that the County had violated a collective bargaining agreement between the County and the Association because officers of the Prince George‘s County Police Department‘s Criminal Investigations Division failed to advise Ford of the right to have a representative from the Association present during the criminal investigative interview that yielded information that later formed part of the basis for his termination.
The case involves a total of four issues: (I) whether the County had the authority to enter into a collective bargaining agreement that requires a Weingarten advisement before a criminal investigative interview of one of the County‘s police civilian employees; (II) whether the provision in the collective bargaining agreement that mandates Weingarten advisements before investigatory interviews applies to criminal investigative interviews; (III) whether the arbitration award violates a
We hold that, under the County‘s code, the County lacked the authority to enter into a collective bargaining agreement that requires a Weingarten advisement before a criminal investigative interview of one of the County‘s police civilian employees; thus, the arbitrator exceeded his authority by basing the arbitration award on the determination that the County had violated the collective bargaining agreement because officers of the Criminal Investigations Division failed to make a Weingarten advisement.1
BACKGROUND
The Arbitration Award
On August 26, 2011, the County terminated the employment of Ford, who had been working in a motor pool of the Prince George‘s County Police Department and who was a member of the Association. In issuing an award, the arbitrator construed Article 8.C. of the collective bargaining agreement to provide that Ford was entitled to a Weingarten advisement before the criminal investigative interview.
The arbitrator found the following facts, which we summarize. Article 8.C. of the collective bargaining agreement states in pertinent part:
When an employee ... is to be the subject of an investigatory interview or other meeting [that] may result in discipline,
he/she shall be informed in writing at least five (5) working days prior to the start of the interview ... of his/her right to have present, upon request, a[n Association] representative.... [I]f an immediate interview is required[,] and the designated [Association] representative is unavailable, the employee may select another [Association] representative who can be present during the investigatory interview.
Article 8.I. of the collective bargaining agreement stated in pertinent part:
The [County] will not initiate disciplinary action against an employee later than ninety (90) calendar days after the occurrence (or after the [County] was aware of the occurrence) of the alleged infraction or violation of Departmental rules or regulations or of the Personnel Law.... These time limits shall apply to alleged infractions or violations [that] affect only the [County]-employee relationship. They shall not apply to alleged violations or infractions [that] are also criminal violations nor to non-criminal violations [that] are related to an active criminal investigation.
Ford was the subject of two investigations: a criminal investigation of allegations of theft of a handgun, impersonation of a law enforcement officer, and use of law enforcement vehicles; and an internal affairs investigation of Ford‘s conduct as an employee. On May 15, 2011, a law enforcement officer reported that her handgun was missing. On May 16, 2011, after advising Ford of his Miranda rights2 (which Ford waived in writing), but without advising Ford of his Weingarten right, officers of the Prince George‘s County Police Department‘s Criminal Investigations Division interviewed Ford. The interview took fourteen hours and lasted into the morning of May 17, 2011. With regard to the interview, the arbitrator found:
After a very brief exchange about the missing [hand]gun, the [interview] focused entirely on [Ford]‘s performance of
The arbitrator noted that, at the arbitration hearing, the County argued that the decision to discharge Ford was supported by Ford‘s own admissions.4
On the same day, the officers of the Criminal Investigations Division also interviewed Khari Grooms (“Grooms“), an acquaintance of Ford‘s. Grooms told the officers of the Criminal Investigations Division that Ford had told Grooms that he was a law enforcement officer, and had taken Grooms on multiple
On May 17, 2011, Ford was placed on administrative leave due to the ongoing criminal investigation. In a written notice dated July 6, 2011, the Prince George‘s County Police Department‘s Internal Affairs Division notified Ford of an investigation regarding whether Ford had used law enforcement vehicles without authorization for personal reasons; in the notice, the Internal Affairs Division advised Ford of his Weingarten right. On the same day, with a representative from the Association present, a member of the Internal Affairs Division interviewed Ford. On July 19, 2011, with a representative from the Association present, a member of the Internal Affairs Division performed another interview of Ford. The arbitrator found: “It would be unrealistic to claim that [the May 16-17 interview by the officers of the Criminal Investigations Division] was wholly unrelated to the [Internal Affairs Division] investigation that began on July 6,” 2011.
On August 12, 2011, Ford was issued a “Notice of Intent, Proposed Disciplinary Action (Conduct Related).” On August 26, 2011, Ford was issued a “Notice of Final Disciplinary Action (Conduct Related),” which advised that he had been terminated because of nine alleged violations of State and local law. Specifically, the Notice of Final Disciplinary Action advised that Ford had been terminated for allegedly violating:
The arbitrator found that Ford had not intentionally engaged in criminal behavior, but had used bad judgment by acting in ways that caused others to assume that he was a law enforcement officer, and by not disavowing that impression when it clearly had been internalized by Grooms and perhaps by others. The arbitrator sustained Ford‘s grievance, vacated the County‘s termination of his employment, imposed a thirty-day suspension instead, and granted back pay to Ford. The arbitrator based the arbitration award on the following findings: (1) Ford never “acted with the intent that would be required to prove that he [committed] the crimes [that were] enumerated in the charges against him“; (2) the County‘s “personnel procedures ... encourage progressive discipline“; (3) the County‘s personnel “procedures also recommend that mitigating factors ... be taken into consideration,” and Ford‘s misconduct was mitigated by his “excellent employment record“; and (4) the County violated the collective bargaining agreement because the officers of the Criminal Investigations
Proceedings in the Court of Special Appeals
The County appealed, and the Court of Special Appeals vacated both the circuit court‘s judgment and the arbitration award and remanded for a rehearing before a new arbitrator, holding in pertinent part that the arbitration award was contrary to an explicit, dominant, and well-defined public policy of effective law enforcement. See Prince George‘s Cnty., MD. ex rel. Prince George‘s Cnty. Police Dep‘t v. Prince George‘s Cnty. Police Civilian Emps. Ass‘n, 219 Md. App. 108, 137, 134, 98 A.3d 1094, 1111, 1109 (2014).
In its analysis, the Court of Special Appeals did not address whether the County had the authority to enter into a collective bargaining agreement that requires a Weingarten advisement before a criminal investigative interview of one of the County‘s employees. Instead, the Court of Special Appeals held that “expanding the requirement of [the] Weingarten right[] to union employees [who] are the focus of a criminal investigation violates public policy[,]” id. at 129-30, 98 A.3d at 1107; that “the arbitrator‘s award ... constrains the ability of the [Prince George‘s County Police Department] to conduct criminal investigations and interrogations of [Association] members[,]” id. at 132, 98 A.3d at 1108; and that “[t]he serious crime of theft of a [law enforcement] officer‘s [handgun] and impersonating a [law enforcement] officer cannot give way to an employee‘s Weingarten right[]. To do so ... would interfere with the [Prince George‘s County Police Department]‘s
In other words, although the Court of Special Appeals held that the arbitrator‘s award violated public policy, the Court of Special Appeals did not assess whether the County had the authority to bargain/contract away the ability to conduct criminal investigations without making Weingarten advisements; rather, the Court of Special Appeals held that the violation of public policy arose because giving the Weingarten advisement would interfere with the police department‘s ability to investigate crime.
Proceedings in this Court
The Association petitioned for a writ of certiorari, raising one issue: “[Did] the Court of Special Appeals err[] when it declared a public policy that was contrary to well-established rules ...?” The County cross-petitioned for a writ of certiorari, raising only the issue concerning reinstatement and back pay. This Court granted the petition and the cross-petition. See Prince George‘s Cnty. Police Civilian Emps. v. Prince George‘s Cnty., 441 Md. 217, 107 A.3d 1141 (2015).
On September 2, 2015, we heard oral argument as to these two issues. On November 24, 2015, we ordered supplemental briefing and reargument as to the following two issues:
- Did the negotiators of the collective bargaining agreement between [the] County and the [ ] Association have the authority to enter into a contractual provision that extends a Weingarten right to criminal investigations?
- As a matter of contract interpretation, does Article 8.C. of the collective bargaining agreement apply to criminal investigations?
The parties filed supplemental briefs. On March 8, 2016, we heard reargument.
DISCUSSION
The Parties’ Contentions
In its supplemental brief, the Association contends that the County had the authority to enter into a collective bargaining
In its supplemental brief, the County responds that
An appellate court reviews without deference a trial court‘s ruling on a petition to vacate an arbitration award. See Balt. Cnty. Fraternal Order of Police Lodge No. 4 v. Balt. Cnty., 429 Md. 533, 565, 540-41, 57 A.3d 425, 443, 429 (2012) (This Court reviewed for “legal[] correct[ness]” a trial court‘s grant of summary judgment in a case that was based on a complaint to vacate an arbitration award.).
“[A]rbitration is favored and encouraged in Maryland because it provides an informal, expeditious, and inexpensive alternative to conventional litigation.” Amalgamated Transit Union v. Lovelace, 441 Md. 560, 576, 109 A.3d 96, 106 (2015) (citation and internal quotation marks omitted). Accordingly, “judicial review of an arbitration award is very narrowly limited[.]” Downey v. Sharp, 428 Md. 249, 268, 51 A.3d 573, 585 (2012) (citation omitted). “[C]ourts generally defer to [an] arbitrator‘s findings of fact and applications of law. Mere errors of law and fact do not ordinarily furnish grounds for a court to vacate ... an arbitration award.” Id. at 266, 51 A.3d at 583 (brackets, citations, ellipsis, and internal quotation marks omitted).
Accordingly, in Amalgamated Transit Union, Div. 1300 v. Mass Transit Admin., 305 Md. 380, 388, 504 A.2d 1132, 1136 (1986), this Court quoted Judge Thurgood Marshall‘s opinion
Having bargained for the decision of the arbitrator on the question of whether [an employee]‘s conduct and criminal conviction constituted “just cause” for discharge, the parties are bound by it, even if it be regarded as unwise or wrong on the merits; “so far as the arbitrator‘s decision concerns construction of the contract, the courts have no business overruling [the arbitration award] because their interpretation of the contract is different from [the arbitrator‘s].” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599 [80 S. Ct. 1358, 4 L. Ed. 2d 1424] (1960).
[A] court shall vacate an [arbitration] award if: (1) An [arbitration] award was procured by corruption, fraud, or other undue means; (2) There was evident partiality by an arbitrator appointed as a neutral, corruption in any arbitrator, or misconduct prejudicing the rights of any party; (3) The arbitrators exceeded their powers; (4) The arbitrators refused to postpone the hearing upon sufficient cause being shown for the postponement, refused to hear evidence material to the controversy, or otherwise so conducted the hearing, contrary to the provisions of
[CJ] § 3-213 [(Arbitration Hearing and Notice) ] as to prejudice substantially the rights of a party; or (5) There was no arbitration agreement as described in[CJ] § 3-206 [(Validity of Arbitration Agreements) ], the issue was not adversely determined in proceedings under[CJ] § 3-208 [(Stay of Arbitration) ], and the party did not participate in the arbitration hearing without raising the objection.
Maryland Case Law and Authority from Other Jurisdictions
This case implicates the third statutory ground for judicial review of an arbitration award—namely, whether an “arbitrator[] exceeded [the arbitrator‘s] powers[.]”
The Court of Special Appeals‘[s] reliance on
[CJ] § 3-224(b)(3) , i.e., the statutory ground [for review] of an [arbitration] award [that] exceeds the arbitrator‘s powers, is ... misplaced.... [A]n issue or matter [that is] resolved by an [arbitration] award may be rational and legally correct[,] but the arbitrator, under the arbitration agreement, may have had no power or authority to resolve the particular issue. On the other hand, an issue may have clearly been within the arbitrator‘s powers, but the arbitrator‘s resolution of the issue may have been irrational or manifestly
erroneous as a matter of law.... Consequently, judicial review of an arbitrat[ion] award on the basis of “irrationality” or “manifest error of law” does not fall within any of the grounds [] in
[CJ] § 3-224(b)[.]
Id. at 263, 51 A.3d at 582 (emphasis added). Our holding in Downey, id. at 263, 51 A.3d at 582, makes clear that the issue of whether an arbitrator exceeded the arbitrator‘s authority is not the same as the issue of whether the arbitration award was legally correct. That said, none of this Court‘s precedent indicates that a court must give any deference to an arbitration award where the issue is whether the arbitrator exceeded the arbitrator‘s powers.
Indeed, this Court‘s precedent leads to the conclusion that an arbitrator exceeds the arbitrator‘s authority by issuing an award that arises out of a contract that one party lacked the authority to enter. In Bd. of Educ. of Charles Cnty. v. Educ. Ass‘n of Charles Cnty., 286 Md. 358, 366-67, 359, 408 A.2d 89, 93, 89 (1979), this Court upheld an arbitration award where, several months after the arbitrator issued the arbitration award, a party challenged the arbitration award on the ground that the arbitrator had exceeded his powers by enforcing an illegal contract. This Court concluded that the party‘s challenge was untimely under
Both now and at the time of Bd. of Educ. of Charles Cnty., id. at 360, 408 A.2d at 90,
The provisions and time constraints of
[CJ §§] 3-227 and3-224 apply equally, whether the arbitration award is challenged on the ground that the underlying contract is invalid because of fraud or on the ground that the arbitrator exceeded his [or her] powers because the underlying contract was illegal....[CJ §§] 3-224 and3-227 establish an orderly mechanism whereby a court, not an arbitrator, makes the final determination of the legality of a contract before an arbitration award is enforced.
(Emphasis added). Thus, in Bd. of Educ. of Charles Cnty., id. at 366, 408 A.2d at 93, although the legality of the underlying contract was not before us, we unequivocally stated that an arbitrator exceeds the arbitrator‘s powers by issuing an award where the underlying contract is invalid.
With the above jurisprudence in mind, we address the issues of whether the County had the authority to enter into a collective bargaining agreement that requires a Weingarten advisement before a criminal investigative interview of one of the County‘s police civilian employees, and whether, as a result, the arbitrator exceeded his authority. As noted above, this Court has not previously considered whether a county has the authority to enter into a collective bargaining agreement that requires a Weingarten advisement before a criminal investigative interview of one of the county‘s police civilian employees. As such, we examine cases in which courts in other jurisdictions have addressed similar issues.
Our inquiry reveals that courts in two other States, Illinois and New York, have addressed the issue of whether public employees had the right to advisements of the right to union representation before interviews by criminal investigators. In
In Ill. State Police, id. 256 Ill. Dec. 424, 751 N.E.2d at 1263, members of the law enforcement agency‘s division of internal investigation interviewed a law enforcement officer as part of a criminal investigation of an alleged insurance fraud scheme. The members of the law enforcement agency‘s division of internal investigation advised the law enforcement officer of his Miranda rights, but not of his right to have a union representative present during the interview. See id. Although the law enforcement officer did not become the subject of criminal charges or disciplinary action, he filed a grievance in which he alleged that the law enforcement agency violated the collective bargaining agreement. See id.
On three occasions, members of the law enforcement agency‘s division of internal investigation interviewed a different law enforcement officer about alleged sexual relations with a fourteen-year-old. See id. During the first interview, the investigation was considered a criminal matter; members of the law enforcement agency‘s division of internal investigation advised the law enforcement officer of his constitutional rights; and, without a union representative present, the law enforcement officer made inculpatory statements. See id. During the second interview, the investigation was considered an administrative matter; a union representative was allowed to be present;13 and the law enforcement officer recanted his
Pursuant to the collective bargaining agreement, the law enforcement officers’ union submitted both officers’ grievances to arbitration. See id. An arbitrator sustained both officers’ grievances and determined that the law enforcement agency had failed to comply with the collective bargaining agreement as to the interviews that had been part of criminal investigations. See id. The law enforcement agency filed a complaint to vacate the arbitration award, and a trial court affirmed the arbitration award. See id.
The Appellate Court of Illinois began its analysis by recognizing that “judicial review of an arbitration award is extremely limited.” Id., 256 Ill. Dec. 424, 751 N.E.2d at 1265 (citation omitted). That Court noted that one ground for judicial review of an arbitration award is the issue of whether “the arbitrator act[ed] within the scope of [the arbitrator‘s] authority[.]” Id. (citation omitted). It bears mention that Maryland law encompasses these principles as well. See Downey, 428 Md. at 268, 51 A.3d at 585 (“[J]udicial review of an arbitration award is very narrowly limited[.]” (Citation omitted));
The Appellate Court of Illinois reversed the trial court‘s judgment and remanded with instructions to vacate the arbitration award. See id., 256 Ill. Dec. 424, 751 N.E.2d at 1267.
Significantly, as to the second reason for vacating the arbitration award—namely, that the arbitrator exceeded his authority by ruling that the law enforcement agency could not interrogate its employees regarding criminal matters unless it complied with the collective bargaining agreement—the Appellate Court of Illinois explained:
[A]n employer cannot by contract give its employees procedural rights and benefits regarding criminal investigations. The fact that the employer in this case is the Illinois State Police is immaterial. Clearly, when [the Illinois State Police] is investigating an employee‘s criminal conduct, it is acting under its statutory duty to enforce the laws of the State of Illinois, not as an employer.
Ill. State Police, 256 Ill.Dec. 424, 751 N.E.2d at 1266 (emphasis added) (citation omitted).
The Appellate Division of the Supreme Court of New York reached a similar conclusion in City of New York v. Uniformed Fire Officers Ass‘n, Local 854, IAFF, AFL-CIO, 263 A.D.2d 3, 699 N.Y.S.2d 355, 360 (1999), aff‘d, 95 N.Y.2d 273, 716 N.Y.S.2d 353, 739 N.E.2d 719 (2000). In City of New York, 699 N.Y.S.2d at 356, the New York City Fire Department and the firefighters’ union were parties to a collective bargaining agreement, under which a firefighter needed to be advised of the firefighter‘s right to have a union representative present during any interview in which the firefighter was “a suspect in a departmental investigation[.]” The New York City Department of Investigation interviewed firefighters without allowing a union representative to be present. See id. at 357. The firefighters’ union filed a grievance and demanded arbitration. See id. at 356. The New York City Board of Collective Bargaining determined that the grievance was arbitrable. See id. at 357. New York City initiated an action to enjoin arbitration of the grievance. See id. A trial court enjoined arbitration of the grievance. See id.
The Appellate Division of the Supreme Court of New York affirmed the trial court‘s judgment on the ground that arbitration of the grievance was barred by a public policy against “any interference with the authority of the Department [of Investigation] to require a public employee to answer questions regarding activities that bear upon the performance of official actions.” Id. at 360, 359. The Appellate Division of the Supreme Court of New York concluded that it was a “fallacy” to characterize New York City—as opposed to the Fire Department—as the firefighters’ “employer” for pur
The Court indicated that, even if it were New York City—as opposed to the Fire Department—that purportedly bargained away the ability to conduct criminal investigations without making certain advisements, arbitration would still be barred on public-policy grounds. See id. at 360 (“The [] discretion conferred upon the Department [of Investigation] to carry out its mandate would likewise be impermissibly compromised by the restrictions imposed upon its examination of witnesses by the collective bargaining agreement[.]“). Significantly, the Court stated: “Because the prerogative of the Department [of Investigation] to employ such investigative procedures as it deems appropriate may not be bargained away, there is no reason to submit to arbitration the question of whether the employee rights provisions of the [] collective bargaining agreement are binding upon the [Department of Investigation].” Id. at 360 (emphasis added).
Analysis
Deriving guidance from Ill. State Police, 256 Ill.Dec. 424, 751 N.E.2d at 1266, and City of New York, 699 N.Y.S.2d at 360, we conclude the County lacked the authority to enter into a collective bargaining agreement that requires a Weingarten advisement before a criminal investigative interview of one of the County‘s police civilian employees, and, as such, the arbitrator exceeded his authority by basing the arbitration award, in part, on the determination that the County violated the collective bargaining agreement because officers of the
No provision of the Prince George‘s County Code gives the County the authority to enter into a collective bargaining agreement that requires a Weingarten advisement before a criminal investigative interview of one of the County‘s police civilian employees. Contrary to the Association‘s contention,
We are unpersuaded by the Association‘s attempt to distinguish Ill. State Police, 256 Ill.Dec. 424, 751 N.E.2d at 1266, and City of New York, 699 N.Y.S.2d at 360, on the ground that those two cases involved “purely” criminal investigations; by contrast, according to the Association, the instant investigation was not “purely” criminal because, on May 16, 2011, Ford‘s supervisor “called him into work [and] compelled him to answer questions[.]” The Association contends that the County has the authority to bind itself to making Weingarten advisements in investigations that are not “purely” criminal.
The Association raises a distinction without a difference. It is immaterial whether an investigation is “purely” criminal. Where an investigation is criminal—purely so or not—the County lacks the authority to bind itself to making Weingarten advisements. This is so because the Prince George‘s County Police Department has a duty to conduct criminal investigations, see
We note that the Maryland Law Enforcement Officers’ Bill of Rights has no effect upon our decision in this case. The Law Enforcement Officers’ Bill of Rights expressly allows counsel or another responsible representative—e.g., a union representative—to be present during an interrogation of the law enforcement officer. See
The Association‘s reliance on the collective bargaining agreement between the State and the American Federation of State, County and Municipal Employees—namely, the provision of that collective bargaining agreement that states: “The right to [union] representation does include a criminal investigation“—for the proposition that the County had the authority to enter into a collective bargaining agreement that requires a Weingarten advisement before a criminal investigative interview of one of the County‘s employees is misplaced. In contending as much, the Association is not relying on any precedent or case law—instead, the Association simply raises the superficial argument that, if the State decided to require Weingarten advisements, then the County must have had the
That the State has chosen to knowingly and explicitly provide for union representation during criminal investigations does not confer upon the County the authority, when acting in the capacity of an employer in collective bargaining process, to contract regarding the manner in which the Prince George‘s County Police Department conducts its statutorily mandated duties as a law enforcement agency. See
Our conclusion in this case does not at all undermine the well-established principles that “judicial review of an arbitration award is very narrowly limited,” Downey, 428 Md. at 268, 51 A.3d at 585 (citation omitted); that “[m]ere errors of law ... do not ordinarily furnish grounds for a court to vacate an arbitration award[,]” id. at 266, 51 A.3d at 583 (brackets, citations, and internal quotation marks omitted); and that a court may not substitute its interpretation of a contract for an arbitrator‘s, see Amalgamated Transit Union, Div. 1300, 305 Md. at 388, 504 A.2d at 1136 (“[S]o far as the arbitrator‘s decision concerns construction of the contract, the courts have no business overruling [the arbitration award] because their interpretation of the contract is different from [the arbitrator‘s].” (Citation omitted)). Notably,
Finally, we dispose of the Association‘s contention that this Court cannot conclude that the County lacked the authority to contract away its ability to conduct criminal investigations without making Weingarten advisements, as the County did not “submit th[e] question of negotiability to” the Prince George‘s County Public Employee Relations Board. The Prince George‘s County Public Employee Relations Board‘s duties include resolving negotiability disputes. See
In sum, a careful review of Maryland case law and authority from other jurisdictions leads to the conclusion that an arbitration award may be vacated where an arbitrator exceeded his or her authority and that an arbitrator exceeds the arbitrator‘s authority by issuing an award where one of the parties lacked authority to enter into the underlying contract. For the reasons set forth above, we conclude that
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART AS
Notes
The Association also asserts that requiring Weingarten advisements could help protect employees’ privilege against self-incrimination. Contrary to the Association‘s implication, employees’ privilege against self-incrimination is already protected by the right to counsel, which applies to all custodial interrogations. See State v. Conover, 312 Md. 33, 38, 537 A.2d 1167, 1169 (1988) (“The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation.” (Citation omitted)). Indeed, here, the officers of the Criminal Investigations Division advised Ford of his Miranda rights, which Ford waived in writing.
In opposing the remedy of back pay and reinstatement based on an alleged Weingarten violation, the County relied on Taracorp Indus., 273 N.L.R.B. 221, 223 (1984), in which the National Labor Relations Board held: “[W]e are without authority to order reinstatement and back[ ]pay as a remedy for a Weingarten violation.” Taracorp concerns the propriety of reinstatement and back pay based exclusively on a Weingarten violation, which is no longer a concern in this case given our holding. Taracorp has no value in assessing the propriety of an award of reinstatement and back pay where an alleged Weingarten violation is not sustained. Here, independent of the alleged Weingarten violation, the arbitrator based the award on the following considerations: (1) Ford never “acted with the intent that would be required to prove that he [committed] the crimes enumerated in the charges against him“; (2) the County‘s “personnel procedures ... encourage progressive discipline“; and (3) the County‘s personnel “procedures also recommend that mitigating factors ... be taken into consideration,” and Ford‘s misconduct was mitigated by his “excellent employment record[.]”