Walker v. Human Resources

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In the Circu it Court for B altimore C ity Case No. 24-C-02-004275 IN THE COURT OF APPEALS OF MARYLAND No. 49 September Term, 2003 ______________________________________ DONNA WALKER, ET AL. v. DEPARTMENT OF HUMA N RESOURCES ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Eldridge, Jo hn C. (Re tired, Specially Assigned), JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: February 11, 2004 Title 12 of the State Personnel and Pensions Article of th e Maryland Code (S PP) sets forth a grievance procedure for most Executive Branch State employees. The question before us is whether that procedure is available to resolve the particular kind of complaint filed by appellants, who are employed by the Baltimore City Department of Social Services (BCDS S), a unit of the State Department of Human Resources (DHR). An administrative law judge, acting for the State Department of Budget and Management (DBM), found that the statutory grievance procedure was not applicable and dismissed their complaints. On judicial review, the Circuit Co urt for Baltim ore City affirm ed that decisio n. We granted certiorari to consider the issue an d shall affirm the judgm ent of the C ircuit Court. BACKGROUND The Statutory and Contractual Framework Subject to certain exceptions, SPP § 12-102(a) makes the grievance procedure set forth in title 12 of the a rticle applicab le to all employees in the State Personnel Management System within the Executive Branch. One of the exceptions, stated in § 12-102(b)(6), is that the title does not a pply to an employee who is subject to a collective bargaining agreement that contains another grievance procedure. Section 12-103(a) broadly permits an employee to present a gr ievance fr ee from c oercion, disc rimination, inte rference, rep risal, or restraint, and § 12-103(b) states that, unless another procedure is provided for by SPP, that grievance procedure is the exclusive remedy through which a non-temp orary employee in the State Personnel Management System may seek an administrative remedy for violations of the provisions of this article. A grievance is defined in § 12-101(b) as a dispute between an employee and his/her employer about the interpretation o f and app lication to the employee of a personnel policy or regulation adopted by the Secretary [of Budget an d Manage ment] or any other policy or regulation over which management has control. That definition is critical to our decision. With certain exceptions, §§ 12-201 through 12-205 create a three-step procedure for resolving grievances. Step 1, provided for in § 12-203, is the filing of a written grievance with the employee s appointing authority within 20 days after (1) the occurrence of the alleged act that is the basis of the grievance, or (2) the employee first knew or should have known of that act. Within 10 days after receiving the grievance, the a ppointin g authority, through its designee, is required to confer with the employee and attempt to resolve th e grievance, and within 10 days after th at confere nce, to issue a written decision in which any relief permissible under § 12-402(a) may be awarded. That relief is limited to restoration of rights, pay, status, or benefits that the employee otherwise would have had if the contested policy, procedure, or regulation had been properly applied. If the employee is unhappy with the result of Step 1, the employee or the employee s representative may, within 10 days after receiving the Step 1 decision, move to Step 2, which is an appeal to the head of the e mployee s princi pal unit, o r that per son s d esigne e. See § 12204. Within 10 days, that person must review the grievance record, confer with the employee, and attemp t to resolv e the grie vance . The unit head must render a written decision -2- within 10 days a fter the c onfere nce. Ste p 3, set f orth in § 12-20 5, is an appeal to the Secretary of Budget and Management, which must be taken in writing by the employee or his/her representative within 10 days after receipt of the Step 2 decision. If the Sec retary does not concur with the Step 2 decision, he/she must first attempt to reach an agreeable and binding settlement, and, if that is unsuccessful, refer the grievance to the Office of Admin istrative Hearings (OAH) for a contested case hearing and final administrative decision under the Adm inistrative Procedure Act (State G overnm ent Article, title 10 , subt. 2). In 1999, the General Assembly enacted legislation intended to supersede an Executive Order that had previously been issued by the Governor (Executive Order 01.01.1996.13) and, by statute, establish limited collective bargaining rights for State Executive Branch employees. See 1999 Md. Laws, ch. 298. It achieved that objective by repealing existing provisions in title 3 of SPP that called for employee/management teams in each of the principal units of the Executive Branch, and replacing those provisions with a new title 3 dealing generally with collective bargaining. Subject to certain exceptions and limitations, the new law gives Executive Branch employees the right to fo rm, join, and participate in employee organizatio ns and to e ngage in other conc erted activities for the purpose of collective bargaining (or to refrain from doing so) and, without the intervention of such an organization, to discuss a ny matter with the employer. § 3-301. The law provides for the creation of bargain ing units and the election o f exclusive representa tives for employee s in -3- those units, and it sets forth procedures for the negotiation of a memorandum of understanding (M OU). With certain exceptions, § 3-502 provides that collective bargaining shall include all matters relating to wages, hours, and other terms and conditions of employment. One of the caveats to that broad scope is that the emplo yer is not required to negotiate on any matter that is inconsisten t with applic able law but may negotiate and reach agreement on such matters, so long as it is un derstood th at the agreem ent as to those matters cannot become effective unless the applicable law is amended by the General Assembly. An MOU must be in writing and ratified by the Governor. It may not be for less than one year or for more than three years. § 3-601. Appellants, Donna Walker, Ravital Shalev, an d Mich elle Moo re-Powe ll, are within the category o f em ploye es co vere d by the title 12 grievance procedure. They are also covered by an MOU that was entered into by the State and Council 92 of the American Federation of State, County, and Municipal Employees (AFSCME) on June 7, 2000, and that was to remain in effect un til June 30, 20 02. Article 3 0 of that M OU pro vides a disp ute resolution proced ure. Us ing the te rms co mplain t and dispute rather than g rievanc e, the Article sets forth a four-step procedure for resolving disputes concerning the application or interpretation of the terms of this MOU. That procedure differs in two principal respects from the grievance procedu re established under title 12 of SPP, one of which is critical here. Step 1, which must be -4- trigg ered with in 15 , rath er than 10, da ys after the event giving rise to the complaint (or the time the employee should reasonably have known of its occurrence), involves a discussion with the emplo yee s immed iate supervisor. The supervisor must attempt to resolve the dispute and res pond o rally within three da ys. Initial resort to the immediate supervisor is not expressly provided for in the statutory grievance procedure; that is one of the differences, but not an important one in this case. Step 2, which must be requested within seven days after receiving the superv isor s respon se, involves a written com plaint to the a ppointin g authority, who must meet with the employee and the union re presentative and respo nd in writing within 20 days. Other than the time limits, that is essentially Step 1 of the statutory grievance proced ure. If the complaint is not resolved at Step 2, Step 3 may be generated by a written complaint filed with the head of th e principal u nit, unless that person is also the appointing auth ority. The unit head must also meet with the employee and the union representative and has 20 days to render a written de cision. Step 3 of the M OU pro cedure is eq uivalent to Step 2 of the grievance procedure. Step 4 is quite different from the final stage of the grievance mechanism which, as n oted, involv es an app eal to the Secretary of Budget and Management and a possible contested case hearing before an Administrative Law Judge. If an MOU complaint is not resolved at Step 3, AFSCME may, within 30 days, invoke a fact-finding procedure involving the Federal Mediation and Conciliation Service (FMCS). If that procedure is invoked, FMCS sends the parties a list of seven fact-finders, from which, either -5- by agreement or sequential strikes, one perso n is selected. T he fact-find er is to resolve a ll questions related to the procedure. If either side disagrees with the fact-finder s decision, an appeal may be taken to the State Labor Relations Board, an entity within DBM that was created by the 1999 le gislation. SPP § 3-208 a uthorizes the Board to in vestigate po ssible violations of title 3 or any other relevant ma tter and to hold contested case hearings whenever necessary for a fair determination of any issue or complaint unde r this title or a regulati on ado pted un der it. Section 3-2 10 provid es that, if a pers on fails to co mply with an order issued by the Board, a member of the Board may petition the circuit court to order the pers on to co mply wi th the B oard s o rder. It is this Step 4 procedure that is important here. OAH has no jurisdiction under the MOU procedure. If there is to be a contested case hearing, that hearing is conducted by the State Labor Relations Board, created by the General Assembly for that express purpose, among others. Nature of the Grievance in Th is Case Appellan ts are c lassi fied as Fa mily S ervices Case Workers II. As n oted, they are employed by BCDSS, a unit of DHR. BCDSS constitutes their appointing authority; DHR is the prin cipal un it. The reco rd show s that they were part of Fam ily Preservation Unit D, although they refer to their unit as the PDE U nit, an acronym that, from the reco rd before us, we are unable to decipher. Their positions are regarded as entry level ones, in which they -6- provide intensiv e casew ork serv ices to f amilies. See COMAR 07.02.01.05 for a description of the kinds of continuing services provided to families. The unit head was one Barbara Terry who, they said, req uired the m to resp ond to ca lls from their clien ts 24 hours a d ay, seven d ays a we ek. On May 31, 200 1, appellants filed nearly identical grievances under the title 12 grievance procedure, complaining of PDE Unit concerns regarding the supervisor who has caused many problems in the working environment and alleging that Ms. Terry violates their employee rights by using unfair labor practices and violates the agency s policies and proced ures. Attached to the Appeal and Grievance Form was a document entitled PDE Group Grievan ce, whic h listed in som e greater de tail a whole range of complaints about Ms. Terry and the administration of the unit. All of those complaints save one were resolved at Step 1. The one complaint not so resolved concerns their demand for substantial retroactive stand by pay. It appears that, prior to the signing of the MOU, DHR had a practice of some sort, not reflected in any regulation and not fully described in this record, of paying $5.15/hour to employees who served in an on call status. Art. 6 of the MO U dealt w ith that and w ith compensation for other types of extra-work week services. Some explanation is required. Art. 6, § 2 of the MOU defined the administrative workweek as beginning at 12:01 a.m. on Wednesday and ending at midnight the following Tuesday. With certain exceptions not appare ntly releva nt here, A rt. 6, § 3 defined the standard w orkw eek as eight h ours /day, -7- five days/week, Monday through Friday. Section 7 of Art. 6 defined work time as including time during which the employee was on duty at either the employee s principal job site or at a remote location as part of the State s Telecommuting Program. That included time the employee is on the employer s premises and is on call and waiting for work, and time that the employee is not on the employer s premises, but is on call and waiting for work, and the em ployee s perso nal activities are substantially restricted. Section 9, captioned Call-B ack Pa y, provides that employees who are called to report to work on a regular day off or who have been reca lled to work after hav ing left the employer s premis es, are en titled to a m inimum of one hour o f pay plu s travel tim e. Section 11 of A rt. 6 deals with Stand-By Pay. It provides, first, that employees are entitled to stand-by pay, at the regular or overtime ra te, as applicab le, if required to remain on the Employer s premises or so close thereto that he/she cannot use the time effectively for his/her own purposes. It provides further that an employee who is not required to remain on the employer s premises but is merely required to leave word at his/her home or with the Employer where h e/she may be reached is not working while on call. Finally, § 11 states: [Depa rtment of Human Resources] shall continue the current practice of paying $5.15 per hour to employees who serve in an on call status through June 30, 2000. Such employees will be paid their regular or overtime compensation, as appropriate, when called to work . In February of 2000 , the Emp loyer shall negotiate the continu ation or mo dification of this on call payment practice. Any changes will be implemented no sooner -8- than Ju ly 1, 2000 . 1 The record before us does not give any furthe r details with re spect to this be nefit when, for this purpose, a person is in an on call status and fo r how lon g; nor doe s it indicate whether, follow ing a ny negotiation s that may h ave o ccur red in or a fter F ebru ary, 2000 (four months prior to the signing of the MOU), any changes were made to the practice. Indeed, the greater mystery is that, as the MOU was not signed until June 7, 2000, and the 1 That provision is supplemented by what is referred to in the MOU as a Side Letter on On-Call Pay for Department of Human Resources that neither party has even mentioned. That side let ter, wh ich is act ually part o f the M OU, recognizes that DHR requires a response to protective service cases 24 hours/day, seven days/week, but that facilities are not continuou sly open, which requires that staff be placed in an on-call status and that they must respond to calls within one hour. The side letter states further that, [b]ecause of the volume of calls, as documented by the work ers, and that re sponding to calls in a bona fide emergency directly affecting public safety, it is agreed that DH R casew orkers in an on-call status shall continue to be compensated at $5.15 per hour for their on-call time. It continues that [s]uch employees, when in an on-call status, will be paid their regular or overtime compensation, as appropriate, when called to work. Finally, for our purposes, the side letter provides: The Employer and the Union further recognize that this policy is unique to the Department of Human Resources and that the Legislature has included budget language that requires the Department to reduce caseloads using the CWLA caseload standard by June 30, 2 003. It is und erstood b y the Union that this is a continuation of the current practices in DHR and is not to be expanded to other employees. A s new emplo yees are hired, th e need for on -call pay w ill be red uced. Whether this side letter was in tended to p rovide for a continua tion of the b enefit provided for in Art. 6, § 11, after June 30, 2000, is entirely unclear, but whatever its force, it is not relevant to this case, as neither party has relied upon it. The sole basis of appellants grievance was Art. 6, § 11 of the MOU. -9- requirement in Art. 6, § 11 to continue the current practice lasted only to June 30, 2000 a period of 23 days the requirement set forth in that section appears to have expired long before any of th e grieva nces w ere filed . In the attachm ent to their griev ance, app ellants asserted that Ms. Terry had informed them, in a variety of ways, that the PDE Unit was an intensive 24 hour, seven days a week service , and that one of them, Ms. Shalev, had been admonished by Ms. Terry for not responding to a call at 10:00 one night about one of her cases, while she was at a sports bar watching a game. Becau se they were required to be ready, willing, and able to react to any situation at any given moment after our standard work day, they claimed that they have been working an additional 64 hours per week, without pay or compensation, and they demanded additional p ay, at the rate of $5.15/hour, for an additional 64 hours/week back to the time they joined the PDE Unit. Ms. Moore-Powell, who joined the unit in July, 1999, sought an addition al $329.66 for 104 w eeks, or $3 4,282; M s. Walker s ought the s ame we ekly amount for 44 weeks, for a total of $14,505; and Ms. Shelev, claiming 24 weeks of entitlement, sought $7,911.2 Those grievances were expressly based on the alleged violation of Art. 6, § 11 of the MOU, and not on any policy or regulation of DHR or DBM. 3 2 We are unab le to understand how the figure of 64 add itional hours was derived . If the claim w as that appe llants were e ffectively wor king 24 hours a day, seven days a week, the entitlement would seem to be for128 hou rs (168 total hours less 40 ho urs worked during the standard work week). Given the limited issue befo re us, the discre pancy is not im portant. 3 Holding aside the problem of the requirement under Art. 6, § 11 la sting only until June 30, 2000, at least the claims made by Ms. Walker and Ms. Shalev cover only the period (contin ued...) -10- The Step 1 proceeding was a conference with designees of BCDSS, the appointing authority. They recognized that the grievance was based on the two basic provisions of MOU Art. 6, § 11 that DHR would continue their policy of paying $5.15/hour to employees in an on call status, and that employees were en titled to stand-by pay if they are required to remain on the employer s premises or so close as to be unable to use the time for their own purposes. They noted that there was very little evidence supporting a right to additional pay, which they regarded as overtime under those provisions. Ms. Moore-Powell said that on July 16 and 1 7, 2001, sh e received a phone c all that required her to act on behalf of one of her clients and that she also received a call from Ms. Walker seeking assistance. Ms. Terry stated that person s assigned to the Family Preservatio n Unit were advised that they must be available (on call) arou nd the cloc k, but that it w as not alw ays necessary that th e worker physically respond to a situation that all that might be necessary was to call the police or a physician. That was confirmed by Ms. Graves, Chief of Operations, who said that, although appellants wer e req uired to c arry a beep er, it w as no t nec essa ry for them to p hysically respond to every situation. The BCDS S designees foun d that there had been a breakdown in communication between appellants a nd their sup ervisor, that the re was little testimony that would alert 3 (...continued) after the MOU was signed and took effect. Part of Ms. Moore-Powell s claim covered a period prior to the effective date of the MOU. She did not indicate the basis for any conclusion that the M OU itself could be applied retroactively, to provide benefits for a time prior to its effective date. -11- management either to the dates or the amount of time appellants were allegedly covered under Art. 6, § 11 of the MOU, and that management would therefore have no idea as to the amou nt of ov ertime th ey are enti tled to. The designees noted that, a s a resolution to this portion of the grievan ce, mana gement a nd appella nts had agree d to effe ctively discuss this issue and reach an agreem ent wher eby the appe llants (if eligible) will be c ompe nsated . Presuma bly in light of that a greemen t, and the lack of sufficie nt evidenc e to suppo rt a spec ific a war d, no awa rd w as made b y the a ppointin g authority. As no agreement was ever reached, AFSCME, on behalf of appellants, appea led to Step 2 design ees of the S ecretary of D HR. A t that stage, two defenses were raised whether the grievance was filed timely, within 20 days after the alleged act that served as the basis for the griev ance, and whether the dispute constituted a grievance under title 12 of SPP. The DHR designees found against appellants on both grounds and denied the grievance. As to timeliness, they concluded that appellants knew of the act forming the basis of the grievance 104, 44, and 24 w eeks, respectively, before the grievances we re filed and, for that reason, the grievances we re untimely. With respect to the second issue, they noted that the MOU was the sole basis cited for the claim, that the MO U has its own e xclusive procedure for resolving complaints concerning the interpretation of that agreement, and that SPP § 12102(b)(6) excludes f rom title 12 a n employee who is su bject to a colle ctive barga ining agreement that contains another grievan ce proc edure. That ruling, as articulated, assumed that the MOU qualified as a collective bargaining agreem ent for purposes of § 12-102(b)(6). -12- Appellan ts then invoked Step 3 with an appeal to the Secretary of Budget and Manag ement, who referred the matter to OAH for a contested case hearing and final administrative decision. T he emplo yer party in the Step 3 proceeding was DHR, which raised the two de fenses raise d at Step 2 that the grieva nces we re untimely and that they did not constitute proper grievances under title 12. Appellants offered two responses to the untimeliness defen se. First, they argued that the grievance had, in fact, been accepted at the Step 1 proceeding that the designees of BCDSS recognized the grievance and resolv ed it by leaving it to the employer and appellants to work out how much the employees should receive. Second, they asserted tha t, although the right to stand-by pay was recognized in the MOU, it stemmed from a DHR policy and that, as it was tha t policy that was not prope rly implemented, a grievance under title 12 was permissible. After hearing argument on both issues, the Administrative Law Judge found the first defense, which was jurisdictional in nature, persuasive. She concluded that OAH therefore had no jurisdiction in the matter a nd thus found it unnecessary to consider the timeliness question. T he ALJ noted that A rt. 6, § 11 of the MOU specifically addresses stand-by pay and that Art. 30, § 1 of the MOU provides that the dispute resolution procedure in Art. 30 shall be the only procedure for complaints concerning interpretation or application of the MO U. Accordingly, she held, the instant dispute must be resolved through the MOU dispute resolution procedure. She also noted, without elaboration, that SPP § 12-102(b)(6) provided that the statutory gr ievance p rocedure d id not apply to an employee who is subject -13- to a collective bargaining agreement that contained another procedure. Appell ants sought judicial review in the Circuit Court for Baltimore City, raising essentially three issues. First, they argued that the intent of the 1999 law was to expand, not restrict, employee rig hts and, in fu rtherance o f that intent, it was impe rmissible to take away statutory grievance procedure rights simply because an alternative mechanism was provided for in an M OU. Se cond, they dis puted that an MOU constituted a collective bargaining agreement for purposes of S PP § 12-102 (b)(6). Third, although they had never invoked the MOU procedure, they posited that it was likely to be ineffectual because the ultimate decider was th e State L abor R elations Board , which was a u nit with in DB M. In a memorand um opinion filed Jan uary 6, 2003, the court rejected those defenses and affirmed the administrative decision. The court found insufficient evidence of any intent by the General A ssembly to allow employees the advantage of two appeal processes, which would allow them, theoretically, to pursue both simultaneously and choose the m ore favorable of two possib ly differe nt results . The court also rejected the notion that the MOU process was ineffectual, especially as it had never been invoked. DISCUSSION For some of the reasons set forth above, the substantive basis for appellants claim is at best murky, but that is not the issue be fore us be cause it was never addressed by the ALJ. The only issue in this appeal is whether the claim is cognizable under the SPP title 12 -14- grievance procedure. If it is not or if it may be pres ented only thro ugh the M OU dis pute resolution procedure O AH, indeed, did n ot have jurisdiction, because it is not part of the MOU procedure. Under the MOU procedure, the final step is the fac t-finding pro cess with an appeal to the State Labor Relations Board. Appellan ts press the arguments they made before the ALJ and the Circuit Court that (1) an MOU does not constitute a collective bargaining agreement for purposes of SPP § 12102(b)(6), and (2) the dispute resolution procedure set forth in Art. 30 of the MOU is not exclusive. The State now concedes the first point that the Memorandum of Understanding is not a collectiv e bargainin g agreem ent, for the purposes stated in appellants brief so that issue is no longer before us in this case and we shall therefore not address it. The question is the scope of Art. 30 of the MOU and the effect of the exclusivity provision therein. Four provisions bear on that question the definition of grievance for purposes of SPP title 12, the function and effect of an MOU, as provided for in SPP §§ 3-501(d) and 3-601, and the language of § 30 of the MO U before us. The basic rules o f construc tion with res pect to these provisions are clear and consistent. As to the statutory provisions, two precepts are controlling here. Our preeminent goal is to discern and implement legislative intent, and, to d o that, we b egin with th e plain meaning of the statuto ry language. If the intent is clear from that language, there is no need to search further . Allstate v. Kim , 376 Md. 276, 290, 829 A.2d 611, 619 (2003). Here, as noted, we must examine sections of titles 3 and 12 of SPP, are both a part of a comprehensive -15- law on State personnel policy and thus have a clear inter-connection. We must therefore try to read them together, harm onio usly, and not construe them either to render one nugatory or to create unnecessary conflict among them. See GEIC O v. Ins. Comm r, 332 Md. 124, 13233, 630 A.2 d 713, 71 7-18 (199 3); Breitenbach v. N.B. Handy, 366 Md. 467, 480, 784 A.2d 569, 577 (200 1); Whiting-Turner v. Fitzpatrick, 366 Md. 295, 302-03, 783 A.2d 667, 670-71 (2001). Though perhaps n ot a collective bargainin g agreement for purposes of SPP § 12102(b)(6), the MOU is clearly a contract between the State and AFSCME, acting as exclusive representative of appellants and their colleagues in the bargaining unit. M aryland courts adhere to the principle of the objective interpretation of contracts, which produces a policy consistent with the way statutes are to be interpreted; i.e., if the langua ge emplo yed is unambiguous, a court shall give effect to its plain meaning and there is no need for further construction by the court. Wells v. Chevy Chase Bank, 363 Md. 232, 251, 768 A.2d 620, 630 (2001); Taylor v. Nationsbank, 365 Md. 166, 178-79, 776 A.2d 645, 653 (2001). We also attempt to construe contracts as a whole, to interpret their separate provisions harmoniously, so that, if possible, all of them ma y be given ef fect. Jones v. Hubbard, 356 Md. 513, 534-35, 740 A.2d 1004, 10 16 (1999 ); Bausch & Lomb v. Utica Mutual, 330 Md. 758, 782, 62 5 A.2d 1021, 1 033 (1993 ), appeal after remand, 114 Md. App. 718, 114 Md. App. 7 27, aff d in part, reversed in part, 355 Md. 566 , 735 A.2d 108 1 (1999). It is possible to re ad the relev ant statutory and contractua l provisions to gether, both -16- harmon iously and consistently with their plain mean ing. We start with SPP , § 12-101(b), which defines g rievance, f or purpos es of the statutory grievance procedure, as being a dispute between an employee and the employee s employer about the interpretation of and application to the employee of: (i) a personnel policy or regulation adopted by the Secretary [of DBM]; or (ii) any other policy or regulation over wh ich management has control. (Empha sis added). As we have observed, it appears that, prior to the M OU, DHR had a practice of payin g $5.15 /hour to emplo yees wh o serve d in an on call s tatus. There is nothing in this record to indicate that this practice was in the form of a personnel policy or regulation adopted by the Secretary [of DBM] or indeed in the form of any other regulation adopted by any agency. To the extent that it constituted a policy on the part of DHR, it would presuma bly have been one ov er which the management of that agency had control, and, if the dis pute conc erned the in terpretation o r application of that policy, the dispute would ha ve constituted a grievance within the meaning of § 12-101(b). The clear objective of title 3 of SPP was to allow a wide range of personnel policies to be developed and implemented contractually, through the collective bargaining process, rather than imposed, and thus withdrawable, unilaterally by the various State agencies. That is implicit in a number of provisions w ithin title 3. Section 3-101(c) defines collective bargaining as good f aith negotiations with the intention of (1) reaching an agreement about wages, hours, and other terms and cond itions of em ployment, and (2) incorporating the terms of the agreement in an MOU. W ith enume rated limited e xceptions, § 3-502(a) p ermits -17- collective bargaining to include all matters relating to wages, hours, and other terms and conditions of employment, and § 3-601(a) directs that an MOU shall contain all matters of agreem ent reac hed in th e collec tive barg aining p rocess. Unless matters contained in an MOU are inconsis tent with existing law and thus, under §§ 3-501(d)(2) and 3-5 02(c), require legislative approval, an MOU con stitutes a contractual undertaking by the State, enf orceable pursuant to § 3-210. Art. 6, § 11 of the MOU represents a fulfillment o f that objectiv e. What ap parently had been merely a DHR practice of paying $5.15/hour stand-by pay became a contractual obligation, at least through June 30, 20 00. That practice wa s no longer discretionary with DHR and was thus no longer one over which DHR manage ment had control. Ap pellants made clear in their grie vance tha t their entitlement to the stand-by pay was based on Art. 6, § 11, and not on an y discretionary DHR practice or policy. The dispute, therefore, was one founded solely on the MOU. That necessarily triggered the dispute reso lution procedure established in Art. 30 of the MOU, which § 1 of that Article states is the only procedure for comp laints co ncernin g interp retation or appl ication o f the M OU. We do not construe this language as withdrawing all, or indeed any, right of an employee covered by both an MOU and by SPP title 12 to use the grievance mechanism provided in the title 12, when the provisions of that title apply. Art. 30, § 1 of the MOU makes that clear by providing th at [d]isciplinary appeals/grie vances o therwise ap pealable through procedures established by law or regulation are not subject to [the MOU] -18- proced ure. If a dispute arises from a personnel policy or regulation of DBM or a policy or regulation over which management has control, and thus constitutes a grievance under title 12, the emplo yee may, and ind eed mus t, use that procedure, even if the matter is also covered in som e way by a n MO U. The mere existence of an MOU does not, therefore, deprive an employee of the statutory grievance procedu re. Art. 30, § 1 clearly precludes parallel and alternative procedures for resolving disputes and carefully delineates when each of the two procedures is exclusively applicable. If the dispute falls within the ambit of the title 12 grievance procedure, the MO U proce dure is not available; the employee has only the title 12 procedure. The exclusivity of the MOU procedure comes into play only when (1) the basis of the dispute arises solely from a provision of an MOU, (2) the dispute concerns the interpretation or application of the MOU, and (3) the dispute no longer falls (or perhaps never fell) within the definition of a grie vance for pu rposes of title 12 . We affirm the judg ment of th e Circuit Court b ecause that is the case he re. JUDGMENT O F CIRCUIT COURT AFFIRMED , WITH COSTS. -19-

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