114 [98 Op. Att’y 

LABOR LAW 

PUBLIC AGENCIES AND ENTITIES – NLRA – GENERAL 

ASSEMBLY MAY ADD THE UNIVERSITY OF MARYLAND 

MEDICAL CENTER TO LIST OF ENTITIES SUBJECT TO 

MARYLAND COLLECTIVE BARGAINING LAW

 

November 21, 2013 

David A. Smulski 

Policy Analyst 

Department of Legislative Services 

General Assembly of Maryland 

On behalf of the Senate Finance Committee of the Maryland 

General Assembly, you have requested our opinion regarding 

whether the employees of the University of Maryland Medical 

Center (“UMMC” or “the Medical Center”)—the flagship 

hospital within the University of Maryland Medical System 

(“UMMS” or “the System”)—are covered by either the National 

Labor Relations Act (“NLRA”) or Maryland labor laws. You 

have also asked us to explain the “status” of UMMS and/or the 

Medical Center “in relation to State Government.” Your request 

emerges from the Committee’s consideration, during the 2013 

session, of proposed legislation that would have added the 

Medical Center to the list of State entities that are subject to 

Maryland’s collective bargaining law. See Senate Bill 759 (2013). 

Given the context in which your request arose, we interpret your 

request as asking whether the Medical Center—and not the other 

constituent member hospitals of UMMS—is a State entity and 

whether the General Assembly could place the Medical Center’s 

employees under the purview of Maryland collective bargaining 

laws that apply only to State employees. 

In our opinion, the Medical Center is exempt from the 

NLRA and is not currently included within the scope of 

Maryland’s collective bargaining law, which grants protections 

similar to those in the NLRA to specific classes of State 

employees. As for the “status” of the Medical Center in relation 

to the State, we cannot broadly determine whether an entity is an 

instrumentality of the State for all purposes. Rather, the Court of 

Appeals requires us to evaluate the entity’s State status within a 

particular statutory context and with reference to the class of 

entities (such as “instrumentalities of the State” or “public 

bodies”) that the statute covers. The Maryland statute governing 
Gen. 114] 115

the collective bargaining process, however, does not lend itself to 

this type of inquiry because it simply lists the specific entities to 

which it applies; it does not identify a general category of entities 

to which it applies or establish a set of criteria that govern 

inclusion on the list. Nevertheless, in light of the recent decision 

by the Court of Appeals that UMMS is an instrumentality of the 

State for purposes of the Public Information Act (“PIA”), Napata 

v. University of Md. Med. Sys. Corp., 417 Md. 724 (2011), we 

conclude that the General Assembly has retained sufficient 

control over the Medical Center to add it to the list of employers 

that are covered by the State collective bargaining law if it so 

chooses. 

I 

Background

A. The University of Maryland Medical Center and the 

University of Maryland Medical System 

The University of Maryland Medical Center traces its 

origins to the Baltimore Infirmary, which was founded in 1823 by 

the faculty of the University of Maryland College of Medicine to 

serve as a teaching hospital. The Infirmary became part of the 

University of Maryland in 1897 and was renamed the University 

of Maryland Hospital. It was owned and operated by the 

University for the next 87 years, first as a private corporation, and 

then, after merging in 1920 with what is now the University of 

Maryland, College Park, as a governmental entity. See 63 

Opinions of the Attorney General 106, 109-111 (1978) (citing 

University of Maryland v. Williams, 9 G. & J. 365 (1838)); see 

also Pearson v. Murray, 169 Md. 478, 483 (1936) (concluding 

that, after the merger with the College of Agriculture in College 

Park, the School of Law was without question “a branch or 

agency of the state government”). 

In 1984, the General Assembly determined that it had 

become “unnecessarily costly and administratively cumbersome 

for the University [of Maryland] to finance, manage, and carry 

out the patient care activities of an academic institution within the 

existing framework of a State agency, since many applicable 

laws, management structures, and procedures were developed to 

implement types of governmental functions which differ from the 

operations of a major patient care facility.” Md. Code Ann., 
116 [98 Op. Att’y 

Educ. (“Educ.”) § 13-302(5).1 According to the General 

Assembly, these “patient care operations” would be “more 

efficiently served by contemporary legal, management, and 

procedural structures utilized by similarly situated, private entities 

throughout the nation.” Id. The Legislature also found that the 

“interests of the citizens of the State, the region, and the 

community naturally served by University Hospital will be best 

met by . . . creat[ing] a separate legal and organizational structure 

for the medical system to provide independence and flexibility of 

management and funding, while assuring a compatible and 

mutually beneficial relationship with the University [of 

Maryland].” Id. § 13-302(7). 

On the basis of these concerns, the General Assembly passed 

legislation creating the University of Maryland Medical System 

Corporation to own and operate the University Hospital as a 

“private, nonprofit, nonstock corporation formed under the 

general corporation laws of this State.” Id. § 13-301(m); see 

generally id. §§ 13-302–13-313; see also 1984 Md. Laws, ch. 

288. The legislation also established a process for transferring the 

assets of the State-owned hospital to UMMS. Educ. § 13-307. 

The express purpose of the new entity was to “provide medical 

care of the type unique to University medical facilities for the 

citizens of the State and region,” id. § 13-302(1), and “render[] 

comprehensive health care to the community naturally served by 

University Hospital . . . .” Id. § 13-302(3). Accordingly, the 

University Hospital became part of UMMS in 1984, as did the 

University Cancer Center and the clinical arm of the Maryland 

Institute for Emergency Medical Services Systems (now called 

the R Adams Cowley Shock Trauma Center). See id. §§ 13-

301(k), 13-302(8). Subsequently, in 1998, UMMS changed the 

name of the University of Maryland Hospital to the University of 

Maryland Medical Center. See Maryland Manual, University of 

Maryland Medical System, http://msa.maryland.gov/msa/ 

mdmanual/25ind/priv/html/medh.html (last visited Nov. 12, 

2013). 

The legislation that created UMMS addressed the System’s 

relationship to State government. The statute explicitly provided 

that UMMS “shall not be a State agency, political subdivision, 

public body, public corporation, or municipal corporation” and 

exempted UMMS from “any provisions of law affecting only 

 

1

 Unless otherwise indicated, all citations to the Education Article 

are to the 2008 Replacement Volume and the 2013 Supplement. 
Gen. 114] 117

governmental or public entities.” Educ. § 13-303(a)(2). The 

System was to be a “private, nonprofit, nonstock corporation 

formed under the general corporation laws” with “all powers of a 

Maryland corporation which are not expressly limited by this 

subtitle,” including “the power to convey, lease mortgage, 

encumber, and otherwise deal with all its assets.” Id. §§ 13-

301(m), 13-303(b). 

Although it established UMMS as an ostensibly private 

corporation, the General Assembly ensured that the State would 

continue to play a prominent role in the System’s governance. 

For example, the authorizing statute required that UMMS’s 

articles of incorporation and the initial transfer of assets from the 

State be approved by the Board of Public Works. Id. §§ 13-

303(a)(1), 13-307(e). The voting members of UMMS Board of 

Directors are all appointed by the Governor,2

id. § 13-304(b), and 

the appointments the Governor makes must include three 

members of the Board of Regents of the University System of 

Maryland (“USM”) and two members of the General Assembly. 

Id. § 13-304(c)(2), (3). The Chancellor of the USM, the President 

of the University of Maryland, Baltimore, and the Dean of the 

University of Maryland School of Medicine also serve ex officio 

as nonvoting members of the UMMS board. Id. § 13-304(c)(7). 

The General Assembly also provided for continuing 

operational coordination between UMMS and the University. 

The Chief Executive Officer of UMMS is elected by the UMMS 

Board of Directors, but must also be appointed to a “joint office” 

as Vice President of UMMS by the Board of Regents. Id. § 13-

304(i). The Medical Center was required to continue to serve as 

the teaching hospital for the University of Maryland, see id. 

 

2

 The UMMS Board of Directors submits a list of nominees to the 

Board of Regents of USM “for comment and to the Governor for 

consideration.” Educ. § 13-304(e). As we have explained in prior 

advice, however, the final authority to appoint rests solely with the 

Governor. See Letter from William R. Varga, Assistant Attorney 

General, to Clifford M. Kendall, Chairman of the Board of Regents 

(Aug. 15, 2008). The Maryland Court of Appeals reached the same 

conclusion in Napata. 417 Md. at 730 (“[A]ll voting members on 

UMMS Board of Directors are appointed by the Governor . . . .”). 

Indeed, in 2008, the Governor appointed members to the UMMS board 

who had not been nominated by the board. See Alexander Pyles, Union 

Organizing at University of Maryland Medical Center, Daily Record 

(Oct. 22, 2012). 
118 [98 Op. Att’y 

§§ 13-302(1), 13-305(a), and “continue to make available medical 

services to residents of various State institutions whose residents 

. . . were served by the Hospital.” Id. § 13-303(l). UMMS is 

required to enter into annual contracts with the University 

regarding “all financial obligations, exchanges of services, and 

any other agreed relationships between the University and 

[UMMS] for the ensuing fiscal year,” id. § 13-306(a), and may 

only establish “nonprofit or for-profit subsidiaries or related 

entities to the extent approved by the University in the annual 

contract.” Id. § 13-303(k). 

With respect to personnel, the statute provided that the 

clinical faculty at the University would serve as the medical staff 

of the Medical Center and hold positions within both institutions. 

Id. § 13-305(a). Other “University employee[s] working in the 

medical system” were given the option to remain a University 

employee covered by the State personnel system or become an 

employee of UMMS. Id. § 13-305(b)(2). Those who elected to 

become UMMS employees nevertheless remained eligible to 

participate in the State Employees’ Retirement System under 

certain conditions. See Md. Code Ann., State Pers. & Pens. 

(“SPP”) §§ 31-102(2)(xx) and 31-107 (2009 Repl. Vol. and 2013 

Supp.).3

 New employees hired after the July 1, 1984 “transfer 

date,” however, qualified as medical system employees 

exclusively, such that, in practice, University employment would 

be phased out over time. In the meantime, the Legislature 

mandated that UMMS “treat medical system University personnel 

on the same basis as Medical System Corporation employees” and 

maintain “an integrated seniority list” of UMMS and University 

personnel. Educ. § 13-305(b)(3), (4). 

Certain other aspects of UMMS’s operations also reflect a 

continuing governmental presence. For example, although the 

medical system was exempted from State procurement laws in 

general, it was nonetheless required to “conduct procurement

activities consistent with minority purchasing standards 

applicable to State government agencies.” Id. § 13-303(e). And 

while the statute includes a specific provision requiring UMMS to 

retain private counsel to represent the University employees who 

elected not to become employees of the System, the Attorney 

General’s Office retained the authority to determine whether 

 

3

 Unless otherwise indicated, all citations to the State Personnel 

and Pensions Article are to the 2009 Replacement Volume and 2013 

Supplement. 
Gen. 114] 119

those University employees were entitled to representation in the 

first place. Id. § 13-308(d). 

The General Assembly provided that the State would 

maintain some financial control over UMMS as well. Although 

UMMS does not depend on the State budget for resources, it must 

“coordinate” its “fund-raising efforts” with the University of 

Maryland, id. § 13-303(j), and may only receive grants from the 

General Assembly after approval from the Board of Regents. Id.

§ 13-303(i). Moreover, to ensure the System’s “financial independence and stability,” the legislation provided that the State 

Treasurer would hold an “Operating Reserve Fund” from which 

the System’s board of directors could request loans. Id. § 13-309. 

The transfer of such funds requires the approval of the Board of 

Public Works. Id. UMMS also must file annual audited financial 

statements with the Governor and Board of Regents. Id. § 13-

303(g). 

Finally, the General Assembly gave the Board of Regents 

and Board of Public Works the authority to terminate UMMS if 

they both find that UMMS has “failed to realize” its public 

purposes. Id. § 13-311(c). In that event, UMMS assets would 

revert to the State. Id. § 13-311(b). 

Since its inception in 1984, UMMS has expanded to form 

affiliations with eight more “member institutions” in addition to 

the Medical Center: the University of Maryland Rehabilitation 

and Orthopedics Institute (formerly Kernan Hospital); the 

University of Maryland Medical Center Midtown Campus 

(formerly Maryland General Hospital); the Mount Washington 

Pediatric Hospital; the University of Maryland BaltimoreWashington Medical Center; University of Maryland Shore 

Regional Health; the Upper Chesapeake Health System (which 

includes Upper Chesapeake Medical Center and Harford 

Memorial Hospital); the University of Maryland Charles Regional 

Medical Center; and the University of Maryland St. Joseph 

Medical Center. See UMMS, “Member Institutions,” http:// 

www.umms.org/hospitals/index.htm(last visited Nov. 5, 2013). It 

is our understanding that these member institutions were 

previously private hospitals and, upon affiliation with UMMS, 

retained some form of separate legal status and currently maintain 
120 [98 Op. Att’y 

their own, separate, boards of directors.4 By contrast, the Medical 

Center is governed directly by the UMMS board and is not a 

separate legal entity. 

B. The National Labor Relations Act 

The National Labor Relations Act was enacted in 1935 in 

response to “[t]he denial by some employers of the right of 

employees to organize and the refusal by some employers to 

accept the procedure of collective bargaining . . . .” 29 U.S.C. 

§ 151. Among other things, the legislation established the National 

Labor Relations Board (“NLRB”). The NLRB facilitates the 

election of collective bargaining representatives by private-sector 

employees,5

 investigates charges of unfair labor practices, and 

adjudicates disputes between private-sector employers and 

employees under the NLRA. See id. §§ 159-161. The NLRA 

does not, however, apply to “any State or political subdivision 

thereof.” Id. § 152(2). Thus, state employers (and employees) are 

not covered by the NLRA, and they do not fall under the 

jurisdiction of the NLRB. 

Although private hospitals are covered by the NLRA, the 

particular relationship between UMMS and the State of Maryland 

rendered uncertain the applicability of federal law to the Medical 

Center. In 1989, in part out of concern that federal law might not 

apply, the General Assembly considered a bill that would have 

amended the UMMS authorizing statute to grant UMMS 

employees some of the same labor privileges that State employees 

enjoyed at the time. See House Bill 303 (1989); Letter from 

Robert A. Zarnoch, Assistant Attorney General, and Noreen A. 

Armetta, Staff Attorney, to Del. Anne S. Perkins (March 20, 

1989). The draft legislation was never enacted. 

In 1990, an employee at the Medical Center—which at that 

point was still called the University Hospital—filed a charge with 

the NLRB alleging violations of the NLRA. As discussed in 

 

4

 The boards of the various UMMS member institutions are listed 

on each institution’s website. See, e.g., http://www.stjosephtowson.com/ 

About-us/Leadership.aspx (listing Board of Directors of St. Joseph); 

http://www.shorehealth.org/news/article.shtml?id=940 (listing Board of 

Shore Regional Health). 

5

 The NLRB does, however, have jurisdiction over the U.S. Postal 

Service—the only governmental entity with that distinction. 39 U.S.C. 

§ 1203. 
Gen. 114] 121

more detail below, a regional director of the NLRB6 concluded 

that UMMS was a “political subdivision” of Maryland under 

§ 152(2) of the NLRA and therefore refused to issue a complaint 

for lack of jurisdiction. See Letter Determination of the Regional 

Director, NLRB Region 5, Case 5-CA-20678 (Feb. 7, 1990). The 

NLRB revisited the issue in 2010 and again concluded that 

UMMS qualified as a political subdivision and, thus, was not 

subject to the NLRA. See Dismissal Letter from the Regional 

Director, NLRB Region 5, Case 5-CB-10912 (Sept. 10, 2010). 

C. State Collective Bargaining Law 

The Maryland collective bargaining law, enacted in 1999, 

gives certain classes of State employees the right to collectively 

bargain, subject to certain exceptions. See SPP § 3-301; 1999 

Md. Laws, ch. 298; Maryland Transp. Auth. v. Maryland Transp. 

Auth. Police Lodge #34 of the Fraternal Order of Police, 420 Md. 

141, 162 (2011). Prior to 1999, State employees’ collective 

bargaining rights were defined by Executive Order. See

Executive Order 01.01.1996.13. But the Executive Order 

permitted State employers to enter into only non-binding 

collective bargaining agreements because, under established 

Court of Appeals precedent, a government agency was not 

allowed to enter into a binding agreement that would delegate its 

discretion without explicit authorization from the General 

Assembly. See McCulloch v. Glendening, 347 Md. 272, 275 

(1997). 

The collective bargaining law provides such explicit 

legislative authorization for collective bargaining to employees of 

the principal departments in the Executive Branch of State 

government and eleven other specified agencies: the Maryland 

Insurance Administration, the State Department of Assessments 

and Taxation, the State Lottery and Gaming Control Agency, the 

USM, Morgan State University, St. Mary’s College of Maryland, 

Baltimore City Community College, the Comptroller, the State 

Retirement Agency, the State Department of Education, and, for 

certain employees, the Maryland Transportation Authority. SPP 

§§ 3-102(a), 3-301(a). Conversely, the statute identifies certain 

categories of employees within those agencies who are not 

 

6

 The NLRA permits the NLRB to delegate certain decisionmaking authority to its regional directors, subject to the Board’s 

review. 29 U.S.C. § 153(b). 
122 [98 Op. Att’y 

conferred collective bargaining rights. See Id. § 3-102(b). 

Relevant to our purposes, “employee[s] who [are] entitled to 

participate in collective bargaining under another law” are not 

covered by the statute. Id. § 3-102(b)(8). Employees covered by 

the NLRA, therefore, would not be covered by the State law. 

Like the NLRA, Title 3 of the Personnel and Pensions 

Article prohibits unfair labor practices, id. § 3-306, establishes 

procedures for employees to elect a bargaining representative, id. 

§§ 3-401–3-407, and regulates the collective bargaining process. 

Id. § 3-502. Responsibility for administering and enforcing the 

law is divided between the State Labor Relations Board (“SLRB”) 

and the State Higher Education Labor Relations Board 

(“SHELRB”). The SLRB has jurisdiction over the employees of 

all of the units listed in § 3-102 except for the USM, Morgan 

State, St. Mary’s College, and Baltimore City Community 

College. Id. § 3-205(a). Employees of these other government 

units fall under the jurisdiction of the SHELRB. Id. § 3-2A-05(a). 

D. Senate Bill 759 

During the 2013 legislative session, the Senate Finance 

Committee considered Senate Bill 759, which would have added 

the Medical Center to the list of employers covered by the State 

collective bargaining law.7

 It appears that the purpose of the 

proposed legislation was to rectify a perceived inequity between 

the labor protections afforded to employees at the Medical Center 

and those provided to similar employees at other UMMS hospitals 

and private hospitals in general. During hearings on this proposed 

legislation, the committee heard testimony that the other member 

hospitals of UMMS were covered by the NLRA and that the 

eligible employees of all UMMS hospitals, except for the Medical 

Center, were represented by labor unions.8 Some legislators and 

 

7

 Senate Bill 759 did not specify whether the Medical Center would 

be subject to the jurisdiction of the SLRB or the SHELRB, which has 

responsibility for the University of Maryland employees who work 

alongside the Medical Center employees. Any future legislation should 

place the Medical Center under the jurisdiction of a particular 

regulatory entity. 

8

 In October 2012, the UMMS Board gave labor union officials 

access to the Medical Center for ninety days to allow SEIU Local 1199 

the opportunity to convince certain employees to join the union. See

Pyles, Union Organizing at University of Maryland Medical Center. 

Based on the testimony at the hearing, it appears that the union’s efforts 

were unsuccessful. 
Gen. 114] 123

proponents of the bill explained that the Medical Center fell 

outside the jurisdiction of the NLRB and, hence, that amendments 

to State law were required to afford Medical Center employees 

the same collective bargaining rights as the employees at other 

UMMS hospitals. 

UMMS opposed the bill on two grounds. First, the General 

Counsel asserted that factual circumstances had changed since 

1990 and that the NLRB, if faced with the question again today, 

might well conclude that the Medical Center is no longer a 

“political subdivision” of Maryland. Second, she argued that the 

General Assembly could not subject the Medical Center to the 

jurisdiction of the SLRB (or SHELRB) because the Medical 

Center is not a State agency and its employees are not State 

employees. Although the Committee took no further action on 

the bill, the questions about the Medical Center raised during the 

hearing appear to have prompted this request for advice. Given 

that context, we direct our analysis to the Medical Center in 

particular, rather than the other member hospitals of UMMS, 

which, as we understand it, already have employees with 

collective bargaining representation. 

II 

Analysis 

We first consider whether the Medical Center is covered by 

the NLRA. If it is, the provisions of the federal law would likely 

preempt any effort to add it to the entities subject to Maryland’s 

collective bargaining law. We then examine the Maryland law to 

determine whether the Medical Center is already encompassed by 

one of the entities covered by the law; if so, further inquiry into 

the System’s “status” for purposes of collective bargaining would 

be unnecessary. And finally, as we conclude that neither federal 

nor Maryland law affords the System’s employees collective 

bargaining rights, we explore whether UMMC remains subject to 

a level of State control sufficient to enable the General Assembly 

to add it to the list of employers that are subject to the Maryland 

law. We believe that it is. 

A. The Medical Center is Exempt from the National Labor 

Relations Act as a “Political Subdivision.” 

The NLRA excludes from its definition of “employer” “any 

State or political subdivision thereof.” 29 U.S.C. § 152(2). Thus, 
124 [98 Op. Att’y 

the collective bargaining rights set forth in federal law do not 

extend to employees of a state or a political subdivision of a state. 

Although UMMS’s authorizing statute specifically provides 

that the system is not a “State agency” or a “political 

subdivision,” the Supreme Court has held that “[f]ederal, rather 

than state, law governs the determination, under [§ 152(2)], 

whether an entity created under state law is a ‘political 

subdivision’ of the State and therefore not an ‘employer’ subject 

to the Act.” NLRB v. Natural Gas Utility Dist. of Hawkins 

County, Tennessee, 402 U.S. 600, 602-03 (1971); see also Shelby 

County Health Care Corp., 343 N.L.R.B. 346, 358 (2004) (citing 

Hawkins County for the proposition that “state law is not 

controlling on the question of whether an entity is a political 

subdivision and that it is to ‘the actual operations and 

characteristics’ of the entity that the Board must look in deciding 

whether the entity is exempt from the Act’s coverage”). The fact 

that the Maryland statute uses the same term as the NLRA, 

therefore, is not determinative. Federal law governs. 

As the Supreme Court has recognized, the NLRA does not 

define the term “political subdivision,” and the “Act’s legislative 

history does not disclose that Congress explicitly considered its 

meaning.” Hawkins County, 402 U.S. at 604. However: 

The legislative history does reveal . . . that 

Congress enacted the [§ 152(2)] exemption 

to except from Board cognizance the labor 

relations of federal, state, and municipal 

governments, since governmental employees 

did not usually enjoy the right to strike. In 

the light of that purpose, the Board . . . “has 

limited the exemption for political 

subdivisions to entities that are either (1) 

created directly by the state, so as to 

constitute departments or administrative arms 

of the government, or (2) administered by 

individuals who are responsible to public 

officials or to the general electorate.” 

Id. at 604-05 (quoting the NLRB’s brief) (emphasis added); see 

also N.L.R.B. v. Princeton Memorial Hosp., 939 F.2d 174, 177 

(4th Cir. 1991) (describing “two part test in Hawkins County”); 

Univ. of Vermont, 297 N.L.R.B. 291, 294-95 (1989) (applying test 

to University). 
Gen. 114] 125

In a 1990 decision, an NLRB regional director concluded 

that UMMS was a “political subdivision,” relying on both prongs 

of the Supreme Court’s decision in Hawkins County. With 

respect to the first prong, the regional director first noted that “the 

Employer is a corporation . . . established directly by an act of the 

[Maryland] General Assembly” and that the legislation required 

UMMS to enter into annual contracts with the University. Letter 

Determination of the Regional Director, Case 5-CA-20678, at 1. 

He also emphasized that over 200 employees—including the one 

who brought the charges under review—“retain[ed] their 

eligibility for State employee benefits” and that, therefore, “the 

Employer in the instant case operates as a joint employer with the 

University . . . .” Id. With respect to the second prong, the 

director reasoned that “the Employer is administered by a board 

of directors, all of whom are appointed by the governor” and that 

the CEO of UMMS “concurrently serves as a vice president” of 

the University of Maryland. Id. at 1-2. On the basis of these 

facts, the Regional Director concluded that the NLRA did not 

apply: 

The Board does not have jurisdiction over 

employers which constitute departments or 

administrative arms of the government or 

over employers administered by individuals 

who are responsible to public officials or to 

the electorate. From these facts, it would 

appear that [UMMS], in addition to its status 

as a joint employer with a department or 

administrative arm of the state, is also an 

entity administered by individuals who are 

responsible to public officials or to the 

electorate. I therefore am refusing to issue 

[a] complaint in this matter. 

Id. at 2 (internal citations omitted). Another NLRB Regional 

Director reaffirmed this determination in 2010, concluding that 

“UMMS is an instrumentality of the State of Maryland; thus, it is 

excluded from the National Labor Relations Board’s jurisdiction 

under Section [152(2)] . . . .” Dismissal Letter from the Acting 

Regional Director, NLRB Region 5, Case 5-CB-10912.

These decisions establish that, at least as of 2010, the NLRB 

did not believe it had jurisdiction over the Medical Center. Given 

that all voting UMMS board members remain gubernatorial 

appointees, we see little reason to believe that the NLRB would 
126 [98 Op. Att’y 

not still find that the Medical Center is “administered by 

individuals who are responsible to public officials or to the 

general electorate.”9 Hawkins County, 402 U.S. at 604-05. Under 

federal law, this is sufficient to exclude an employer from the 

jurisdiction of the NLRA as a “political subdivision.” Id.; see also 

Univ. of Vermont, 297 N.L.R.B at 295 (finding the University of 

Vermont to be a political subdivision of the State of Vermont, and 

thus exempt from coverage under the NLRA, where “12 of the 21 

trustees are selected by the State, either by legislative election or 

by gubernatorial appointment”). As noted above, this view is also 

consistent with our previous advice, issued in 1989, that UMMS 

was likely exempt from the NLRA because “it is clear that the 

Corporation is administered by individuals who are responsible to 

public officials.” March 20, 1989 Advice Letter at 2. 

To be sure, some circumstances have changed since 1990. 

For example, fewer employees of the Medical Center remain part 

of the State personnel system. As a result, the Medical Center is 

not a “joint employer” with the University to the same extent it 

was in 1990. Nevertheless, even if changed circumstances have 

weakened part of the rationale for the NLRB’s earlier decision, 

the regional director’s analysis also rested on the alternative, 

 

9

 Although the UMMS statute contains no provisions governing the 

removal of the UMMS board members, the NLRB has explained that 

the power to remove a board member is a factor, but not the “critical 

factor,” in determining whether an entity is responsible to public 

officials. Economic Sec. Corp., 299 N.L.R.B. 562, 565 (1990), 

overruled on other grounds by Enrichment Services Program, Inc., 325 

N.L.R.B. 818 (1998). “Responsibility to public officials or the general 

electorate has never been interpreted to require that the board members 

be subject to removal from office by public officials . . . in addition to 

being placed in office by public officials . . . .” Economic Sec. Corp., 

299 N.L.R.B. at 564. The NLRB has on multiple occasions found that 

an entity was a political subdivision for purposes of the federal law 

even without any evidence that the Board members could be removed 

by public officials or the electorate. Id. at 564-65 (citing Univ. of 

Vermont, 297 N.L.R.B. at 295 n.23; Prairie Home Cemetery, 266 

N.L.R.B. 678 (1983); Community Health & Home Care, 251 N.L.R.B. 

509 (1980); Northern Cmty. Mental Health Ctr., 241 N.L.R.B. 323 

(1979); City of Austell Nat. Gas Sys., 186 N.L.R.B. 280 (1970)). It is 

worth noting, however, that a former Chairman of the NLRB disagreed 

and claimed that “a critical factor in establishing accountability under 

the Hawkins analysis is whether public officials or the general 

electorate have an unfettered right of removal during an individual’s 

term.” Oklahoma Zoological Trust, 325 N.L.R.B. 171, 173 (1997) 

(Gould, dissenting). 
Gen. 114] 127

unchanged ground that the UMMS Board of Directors was 

appointed by the Governor. And the NLRB re-affirmed its 

position only three years ago, having concluded again that 

UMMS remains “an instrumentality of the State of Maryland” for 

purposes of its jurisdiction. Dismissal Letter from the Acting 

Regional Director, NLRB Region 5, Case 5-CB-10912.10 Given 

that the NLRB’s position is consistent with our prior advice, we 

see little reason to withhold the deference ordinarily afforded a 

federal agency’s interpretation of the statute it administers. 

Lechmere v. NLRB, 502 U.S. 527, 536 (1992) (“Like other 

administrative agencies, the NLRB is entitled to judicial 

deference when it interprets an ambiguous provision of a statute 

that it administers.”). Thus, we conclude that UMMS is currently 

not subject to the NLRA. 

B. Current Applicability of the Maryland Collective

Bargaining Law 

As explained above, Maryland’s collective bargaining law 

specifically identifies the categories of employees who do, and do 

not, enjoy such bargaining rights. See SPP § 3-102(a). Neither 

the Medical Center nor UMMS is listed in § 3-102(a) as a 

governmental unit to which the law is applicable. The statute thus 

currently does not afford collective bargaining protections to 

employees of the Medical Center. Legislation would be necessary 

to bring the Medical Center within the scope of Maryland’s 

collective bargaining law.11 We turn now to whether the State 

maintains sufficient control over UMMS to do so. 

 

10 Because the Medical Center meets the second part of the Hawkins 

County test, there is no need to determine whether it would also 

constitute an “administrative arm of the government” under federal 

law. However, the Court of Appeals decision in Napata, which will be 

discussed in more detail below, suggests that the NLRB might still find 

that the Medical Center also meets the first part of the Hawkins County

test. 

11 Although your request asks us to consider whether the Medical 

Center may be subject to “various” labor laws, we assume based on the 

context in which your request arose—and your focus on the NLRA—

that you were asking about the Maryland collective bargaining law. 
128 [98 Op. Att’y 

C. The General Assembly Retains Sufficient Control over 

UMMS to add the Medical Center to the List of Employers 

Covered by the Maryland Collective Bargaining Law 

During the hearings on Senate Bill 759, legislators and 

witnesses questioned whether the Medical Center was a State 

entity and whether its employees could be considered State 

employees for purposes of adding them to the collective 

bargaining law. These questions reflected a concern that it would 

be incongruous, or perhaps even illegal, to place the Medical 

Center under the jurisdiction of the SLRB or SHELRB if the 

Medical Center were not a State entity. In response to this 

concern, you asked us to explain the “status” of the Medical 

Center “in relation to State government.” 

We are not able to provide a definitive characterization of 

the Medical Center’s State status that would apply in each and 

every context; instead, we must consider whether an entity is a 

State entity “for a particular purpose.” A.S. Abell Publishing Co. 

v. Mezzanote, 297 Md. 26, 35 (1983) (regarding the PIA). We 

must, therefore, “look to the characteristics and functions of [the 

entity] in the context of the particular statute at issue to determine 

whether [the entity] is intended to be viewed, for purposes of that 

statute, as a State entity.” 78 Opinions of the Attorney General

128, 134 (1993) (emphasis added). And even within a particular 

statutory context, “there is no single test for determining whether 

an entity is a unit or instrumentality of the State.” Napata, 417 

Md. at 733. Rather, to determine “whether a statutorilyestablished entity is an agency or instrumentality of the State for a 

particular purpose,” we must examine “[a]ll aspects of the 

interrelationship between the State and the statutorily-established 

entity.” Mezzanote, 297 Md. at 35. 

We have recognized that this is “essentially an ad hoc” 

inquiry, 70 Opinions of the Attorney General 30, 34 (1985), and, 

as a result, “an entity may be considered an agency, unit, or 

instrumentality of government for one purpose, but not for 

another.” 71 Opinions of the Attorney General 206, 211 (1986). 

For example, the Court of Appeals has concluded that the 

Washington Suburban Sanitary Commission (“WSSC”) is a State 

entity for purposes of sovereign immunity, Katz v. Washington 

Suburban Sanitary Comm’n, 284 Md. 503, 512 (1979), and the 

Administrative Procedure Act, Donocam Assocs. v. Washington 

Suburban Sanitary Comm’n, 302 Md. 501, 510 (1985), but is not 

a “state agency” for the purpose of a statute that provided citizens 

with a process for obtaining from the Office of the Comptroller a 
Gen. 114] 129

refund of excess agency charges. Washington Suburban Sanitary 

Comm’n v. C.I. Mitchell & Best Co., 303 Md. 544, 561 (1985). 

With respect to UMMS specifically, we have similarly 

reached different conclusions about the System’s status depending 

on the specific context. For example, we have previously advised 

that UMMS was “not a public entity” for purposes of the 

Maryland Constitution’s prohibition on members of the General 

Assembly holding multiple State offices, see Letter from Robert 

A. Zarnoch, Assistant Attorney General, to Sen. Laurence Levitan 

(March 12, 1984), was not a “public body” under the Open 

Meetings Act, Letter from Robert N. McDonald, Assistant 

Attorney General, to Sen. Joan Carter Conway (Oct. 4, 2007), and 

was not a “state agenc[y]” for purposes of the law authorizing the 

Maryland Stadium Authority to construct facilities for State 

agencies. Letter from Richard E. Israel, Assistant Attorney 

General, to Matthew Klein, Department of Legislative Services 

(April 3, 2003). At the same time, we have concluded that 

UMMS was likely an instrumentality of the State for purposes of 

the PIA, Letter from Kathryn Rowe, Assistant Attorney General, 

to Sen. Vera Jones (March 21, 2007), Oct. 4, 2007 Advice Letter 

at 2-3, and that the General Assembly could require UMMS to 

acquire the Prince George’s County Hospital System because 

UMMS’s “existence is subject to legislative control” and it has 

“some of the hallmarks of a State entity,” such as a board 

appointed by the Governor. Letter from Bonnie Kirkland, 

Assistant Attorney General, to Del. Victor Ramirez (Jan. 18, 

2007). 

The Maryland collective bargaining law, however, does not 

lend itself to the type of multi-factor analysis used in these cases 

and advice letters to determine whether an entity qualifies as a 

State entity for a particular purpose. The collective bargaining 

law simply lists the specific entities to which it applies; it does not 

apply to “a unit or instrumentality of the State government or of a 

political subdivision,” as does the PIA, see Md. Code Ann., State 

Gov’t § 10-611(h), or a “public body” or public “office,” as do 

the Open Meetings Act, id. § 10-505, and Article 33 of the 

Maryland Constitution, respectively. The scope of Maryland’s 

collective bargaining law thus is determined not by whether a 

specific entity qualifies as a State entity but by whether the 

subject entity is actually named in the law. 

The unsuitability of the collective bargaining law to the 

traditional State entity analysis does not mean, however, that we 
130 [98 Op. Att’y 

cannot answer your ultimate question about whether the 

Legislature may add UMMC to the list of entities subject to the 

collective bargaining law. That question, we believe, turns on the 

extent of the State’s power to regulate UMMS and alter the terms 

of its authorizing statute. 

The Legislature’s power to alter the form or function of 

public corporations is plenary. The Court of Appeals has defined 

a “public corporation” as one that is “created by the Legislature 

for political purposes, with political powers, to be exercised for 

purposes connected with the public good, in the administration of 

civil government.” State v. Bd. of Educ., 346 Md. 633, 645 

(1997). Because public corporations “are instruments of government subject at all times to the control of the Legislature,” id., the 

Legislature can “amend at will [their] enabling legislation.” 

Atlantic Golf, Ltd. P’shp v. Maryland Econ. Dev. Corp., 377 Md. 

115, 125 (2003). 

The General Assembly’s authority over private corporations 

is more limited. Under Article III, Section 48 of the Maryland 

Constitution, private corporations must be chartered under general 

law unless formed for “municipal purposes” or “where no general 

laws exist, providing for the creation of corporations of the same 

general character.” While the Legislature retains the power to 

“alter[]” the charter of any corporation created under the authority 

of Md. Const., Art. III, § 48, its power is subject to a number of 

substantive limitations: Legislation affecting private corporations 

may not “defeat[] or fundamentally change[]” the corporation’s 

purpose or take private property, impair contractual obligations, 

or otherwise violate constitutional prohibitions. See Board of 

Regents of Univ. of Md. v. Trustees of Endowment Fund of Univ., 

206 Md. 559, 569 (1955); 70 Opinions of the Attorney General

180, 193 (1985). 

The extent of the General Assembly’s power with respect to 

UMMS thus hinges to some extent on whether the System is a 

public or private corporation. On this point, the Court of Appeals 

made clear in Napata v. University of Maryland Medical System 

Corporation that the Medical Center is not a wholly private 

corporation because it is imbued with numerous public attributes. 

In Napata, the Court concluded that UMMS—which directly 

controls the Medical Center—is an “instrumentality of the State,” 

at least for purposes of the PIA.12 417 Md. at 736-37. It 

 

12 It is not clear whether the Court of Appeals intended this 

conclusion to apply to all of UMMS’s member institutions, including 
Gen. 114] 131

acknowledged that UMMS had some characteristics of a private 

entity but held that “the attributes of UMMS’s relationship with 

the State that point to its being an instrumentality of the State 

predominate over those pointing to its private character, for 

purposes of the corporation’s inclusion in the scope of the PIA.” 

Id. (internal quotation marks omitted). 

According to the Court, the first attribute pointing toward 

the medical system’s State status was that “UMMS did not exist” 

until created by the Legislature and “until the State assets were 

transferred to the corporation.” Id. at 737. In addition, UMMS 

“served a public purpose” by “providing health care to the local 

community . . . and a teaching hospital for University students.” 

Id. The Court also observed that the State “remains a visible and 

compelling force in UMMS’s operations,” given that (1) all 

voting members of its board of directors are appointed by the 

Governor, and at least two are members of the General Assembly; 

(2) UMMS must coordinate with the University on fundraising 

and is therefore “not free to compete with the University for 

private gifts or private or federal grants”; (3) and “its annual 

contracts [with the University] must be approved by the Regents 

of the University.” Id. Moreover, the Court noted that the Board 

of Regents and the Board of Public Works are empowered to 

dissolve UMMS if they find that it is not fulfilling its public 

purpose and, under those circumstances, the assets would revert to 

the State. Id. These facts, the Court concluded, “compel the 

conclusion that UMMS is an instrumentality of the State.” Id. 

While Napata establishes that UMMS is not a wholly private 

corporation, the Court of Appeals might find that the Medical 

Center is also not a wholly public corporation because the 

General Assembly has explicitly provided that UMMS is not a 

“public corporation.” Educ. § 13-303(a)(2); but see Napata, 417 

Md. at 734 n.5 (cautioning that status as a State entity may 

depend on “the attributes of the relationship” and not “the 

terminology used to describe the relationship”). However, in light 

of Napata and the many attributes of State status held by UMMS, 

we believe that, at the very least, the Medical Center is a type of 

 

those governed by separate boards with a degree of separate legal 

status, or only the UMMS Board and the Medical Center. Because 

your opinion request concerns only the Medical Center, we need not 

determine whether the same rationale would apply to the other UMMS 

institutions. 
132 [98 Op. Att’y 

quasi-public corporation subject to the continuing control of the 

Legislature. 

The Court of Appeals has explained that a quasi-public 

corporation is “not a public corporation, and, thus is a private 

corporation[] [b]ut . . . has the characteristics of a public 

corporation in function, effect or status.”13 Potter v. Bethesda 

Fire Dep’t, Inc., 309 Md. 347, 357 (1987). Although we have 

concluded in one instance that the General Assembly did not 

violate certain constraints on its power when it “terminat[ed]” an 

existing quasi-public corporation and “replac[ed]” it with a new 

public corporation, see 70 Opinions of the Attorney General at 

192-94, we are not aware of any Maryland cases that have 

directly addressed the Legislature’s power to regulate quasipublic corporations, or where that power lies on the spectrum 

between the plenary power to regulate public corporations and the 

more limited power to regulate private entities. We are confident, 

though, that wherever that line is drawn, UMMS is sufficiently 

imbued with public characteristics that the General Assembly 

retains the power to place Medical Center employees under the 

jurisdiction of the SLRB or SHELRB if it so chooses. As the 

Court of Appeals observed, “the General Assembly . . . did not 

relinquish all control of UMMS,” and the State remains “a visible 

and compelling force in [the Medical Center’s] operations.” 417 

Md. at 730, 737. Indeed, we have previously advised that UMMS 

is “a creation of statute,” the existence of which “is subject to 

legislative control.” March 20, 1989 Advice Letter at 2. We thus 

conclude that a corporation, like UMMS, that is formed by the 

State and can be extinguished by the State, and whose 

management and operations remain subject to significant 

legislative control may be added to the list of entities subject to 

the collective bargaining law.14

 

13 For example, we have previously characterized the Blind 

Industries and Services of Maryland, which like UMMS was created by 

State statute and has a board of directors appointed by the Governor, as 

a quasi-public corporation because it was privately owned but imbued 

with a public interest. See 78 Opinions of the Attorney General at 134-

37. 

14 We recognize that quasi-public corporations can take many 

different forms, and we do not attempt to articulate a rule here that 

would apply to all such corporations. As the Court of Appeals has 

recognized, some quasi-public corporations are imbued with more 

“governmental” characteristics than others. Potter, 309 Md. at 358; see 

also 78 Opinions of the Attorney General at 136. We accordingly 
Gen. 114] 133

Moreover, even if the Court of Appeals were to find that the 

Medical Center is a wholly private corporation, we would still 

conclude that the General Assembly has the authority to add the 

Medical Center to the collective bargaining law. Conferring 

collective bargaining rights on UMMC employees would not 

exceed the substantive limits on the Legislature’s power to 

regulate private corporations. To begin with, we see nothing about 

collective bargaining that would “defeat or fundamentally 

change” the System’s medical purpose. Cf. State v. Good 

Samaritan Hospital, Inc., 299 Md. 310, 323 (1984) (legislation 

requiring hospitals that provide foot care to confer staff privileges 

on qualified podiatrists does not “defeat or fundamentally change 

Good Samaritan’s corporate purpose to erect and maintain a 

hospital”). The employees of private hospitals have long enjoyed 

the right to collectively bargain. Indeed, hospitals have been 

subject to the NLRA to varying degrees since 1935 and, in 1974, 

Congress amended the NLRA to extend coverage to all acute care 

hospitals. Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 614-15 (1991). 

Nor would extending collective bargaining rights to UMMC 

employees undermine the particular purpose behind the 1984 

legislation creating UMMS. As “found and determined” by the 

General Assembly, that purpose was to free the hospital of the 

“laws, management structures, and procedures” uniquely 

applicable to State agencies. Educ. § 13-302(5). Given that the 

employees of private hospitals enjoy collective bargaining rights, 

we fail to see how providing those same rights to UMMC 

employees would contradict the purpose of the 1984 enactment. 

Extending collective bargaining rights to System employees 

likewise would not abrogate vested property rights, impair the 

obligation of contracts, or run afoul of any other constitutional 

prohibition. There are no private property rights at stake here, 

and “when the General Assembly assigns a ‘public’ task to a 

private corporation, the corporation ‘acquire[s] no vested 

inviolable right to that political power,’ immune from removal by 

subsequent legislation.” 70 Opinions of the Attorney General at 

193 (quoting Williams, 9 G. & J. at 391, and concluding that 

repealing charter of quasi-public corporation and replacing it with 

a public corporation was permissible). And because UMMS was 

created by statute, “[i]t had no ‘incorporators’ who could 

 

assume that some quasi-public corporations may be subject to more 

legislative control than others. 
134 [98 Op. Att’y 

challenge the [amendment of its charter] as being an impairment 

of their contract with the State.” 70 Opinions of the Attorney 

General at 193 (citing Board of Regents, 206 Md. at 567-68). 

We conclude that, even if UMMS is considered a wholly 

private corporation, legislation adding it to the list of entities 

subject to Maryland’s collective bargaining law would not exceed 

the Legislature’s proper power. But because Napata convinces us 

that UMMS is not wholly private, we believe that the 

Legislature’s powers are somewhat closer to its plenary powers 

over public corporations than to its more limited powers over 

private entities. Thus, however UMMS is classified, it is our 

opinion that the Legislature retains sufficient control over the 

System to add UMMC to the list of entities subject to the 

Maryland collective bargaining law.15

 

III 

Conclusion 

The Medical Center’s employees are not currently covered 

by either the NLRA or Maryland’s collective bargaining statute. 

However, because the Medical Center is a State entity for at least 

some purposes and remains a creature of statute within the 

ultimate control of the State, the General Assembly has the 

authority to enact legislation that would subject the Medical 

Center to Maryland’s collective bargaining law. 

 

15 Regardless of how the Medical Center is characterized, we do not 

believe that legislation adding Medical Center to the list of entities 

covered by the State collective bargaining law would run afoul of the 

exemption UMMS enjoys from “any provisions of law affecting only 

governmental or public entities.” Educ. § 13-303(a)(2). Although the 

collective bargaining law currently applies only to “governmental or 

public entities,” id., the new legislation would deal “more specifically” 

with the subject of labor protections for UMMS employees and would 

therefore serve as an exception to UMMS’s more general exemption. 

See Napata, 417 Md. at 738-39 (quoting Gov’t Emp. Ins. Co. v. Ins. 

Comm’r, 332 Md. 124, 132-33 (1993)). We also doubt that the 

Maryland Constitution’s prohibition on special laws, see Md. Const. 

Art. III, § 33, would stand as an obstacle to such legislation. Such a 

law would not appear to be the type of evil that the special laws 

provision was intended to prevent, and, given the unique history of 

UMMS and the special rules that apply to it, the Medical Center would 

reasonably be considered a “class of itself.” Cities Serv. Co. v. 

Governor of Md., 290 Md. 553, 568-70 (1981). 
Gen. 114] 135

 Douglas F. Gansler 

Attorney General

 Adam D. Snyder 

Chief Counsel, Opinions & Advice 

* Assistant Attorneys General Katherine D. Bainbridge, Clifton 

Gray, and Patrick Hughes contributed significantly to the 

preparation of this opinion.