In a recent, unanimous decision the Maryland Court
of Appeals in McCullough v. Glendening upheld the legality of Governor
Parris N. Glendening’s Executive Order 01.01.1996.13, granting exclusive
collective bargaining rights to some 40,000 employees in the Executive
Branch of the Maryland state government. The leaders of three prominent
business organizations challenged the Order as a violation of separation
of powers, claiming that it usurped the legislature’s historic authority
to determine the public policy of the state with regard to collective bargaining,
thus exceeding the Governor’s limited statutory power to issue executive
orders. The plaintiffs also contended that the Order violated the court’s
own clear legal precedent as well as several advisory opinions of the Office
of Maryland’s Attorney General, and the overwhelming weight of applicable
out-of-state decisions regarding public sector collective bargaining.
The decision of the Court comes in the wake of more than fifty years of consistent legislative rejection of statewide collective bargaining by the Maryland General Assembly. From 1978 through 1996, comprehensive collective bargaining bills were submitted annually to the state legislature, twenty-five in the last six sessions alone. Not one was enacted. Indeed, in the 1996 session twin bills authorizing broad collective bargaining rights and submitted by Governor Glendening, pursuant to his campaign promise of 1994, died in committee. In the face of recurrent legislative setbacks, the governor issued his Order, and with the stroke of his pen authorized what the General Assembly had consistently rejected for over half a century.
Glendening’s Order embraces largely the same collective bargaining system embodied in the rejected twin bills of 1996. The Order provides for employee elections of exclusive union representatives in nine bargaining units; mandates "good faith negotiations" between the State and the certified union representatives with the goal of executing an agreement; limits the rights of individual employees to the grievance procedure; allows for payroll deduction of union dues; and prohibits strikes and work stoppages. What the Order does not do, however, is provide for the submission of bargaining impasses over new contract terms to "binding arbitration," although it encourages the traditional "fact-finding" and "mediation" techniques used in "binding" labor statutes in Maryland and all over the United States, to encourage resolution of such disputes.
It is upon this apparent lack of a "binding" enforcement mechanism where the Court of Appeals hung their decision. The Court’s opinion, drafted by Chief Judge Robert Bell, explicitly held that since "the Order does not provide for binding arbitration or any other form of binding dispute resolution mechanism," it does not require prior express legislative approval. Thus, under Maryland law, "only those [collective bargaining agreements] that contain a binding arbitration clause or are otherwise binding upon and enforceable against the State" require prior legislative endorsement. One doubts whether the elected unions (including AFSCME and the International Brotherhood of Teamsters) have told their new Maryland members that the agreements they negotiate in their behalf are utterly unenforceable under the Court of Appeals’ analysis. Yet, this conclusion is the logical corollary to the Court’s holding.
While the decision of the Court may prove to be an empty victory for organized labor, it broadly expands the Governor’s authority to control the state workforce and issue executive orders. Indeed, no other governor in the country has even attempted to issue an order akin to what Governor Glendening has wrought, let alone had such action blessed by a state high-court. Notwithstanding the obvious public interest in weighing the merits of collective bargaining for public employees--potentially inflated wage and benefits costs, decreased efficiency in the delivery of public services through restrictive work rules, and the detrimental impact on the State’s much maligned lack of a "business-friendly" environment--the public’s right to frank legislative deliberation and decision was bypassed. Instead, Maryland’s highest court has stated that, so long as any "memorandum of understanding" does not provide for binding interest arbitration, the Governor is free to unilaterally authorize exclusive union representation of State employees without prior legislative approval.
The decision of the Court comes in the wake of more than fifty years of consistent legislative rejection of statewide collective bargaining by the Maryland General Assembly. From 1978 through 1996, comprehensive collective bargaining bills were submitted annually to the state legislature, twenty-five in the last six sessions alone. Not one was enacted. Indeed, in the 1996 session twin bills authorizing broad collective bargaining rights and submitted by Governor Glendening, pursuant to his campaign promise of 1994, died in committee. In the face of recurrent legislative setbacks, the governor issued his Order, and with the stroke of his pen authorized what the General Assembly had consistently rejected for over half a century.
Glendening’s Order embraces largely the same collective bargaining system embodied in the rejected twin bills of 1996. The Order provides for employee elections of exclusive union representatives in nine bargaining units; mandates "good faith negotiations" between the State and the certified union representatives with the goal of executing an agreement; limits the rights of individual employees to the grievance procedure; allows for payroll deduction of union dues; and prohibits strikes and work stoppages. What the Order does not do, however, is provide for the submission of bargaining impasses over new contract terms to "binding arbitration," although it encourages the traditional "fact-finding" and "mediation" techniques used in "binding" labor statutes in Maryland and all over the United States, to encourage resolution of such disputes.
It is upon this apparent lack of a "binding" enforcement mechanism where the Court of Appeals hung their decision. The Court’s opinion, drafted by Chief Judge Robert Bell, explicitly held that since "the Order does not provide for binding arbitration or any other form of binding dispute resolution mechanism," it does not require prior express legislative approval. Thus, under Maryland law, "only those [collective bargaining agreements] that contain a binding arbitration clause or are otherwise binding upon and enforceable against the State" require prior legislative endorsement. One doubts whether the elected unions (including AFSCME and the International Brotherhood of Teamsters) have told their new Maryland members that the agreements they negotiate in their behalf are utterly unenforceable under the Court of Appeals’ analysis. Yet, this conclusion is the logical corollary to the Court’s holding.
While the decision of the Court may prove to be an empty victory for organized labor, it broadly expands the Governor’s authority to control the state workforce and issue executive orders. Indeed, no other governor in the country has even attempted to issue an order akin to what Governor Glendening has wrought, let alone had such action blessed by a state high-court. Notwithstanding the obvious public interest in weighing the merits of collective bargaining for public employees--potentially inflated wage and benefits costs, decreased efficiency in the delivery of public services through restrictive work rules, and the detrimental impact on the State’s much maligned lack of a "business-friendly" environment--the public’s right to frank legislative deliberation and decision was bypassed. Instead, Maryland’s highest court has stated that, so long as any "memorandum of understanding" does not provide for binding interest arbitration, the Governor is free to unilaterally authorize exclusive union representation of State employees without prior legislative approval.