Opinion
C. A. WM-2021-0079
06-01-2021
TOWN OF WESTERLY, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, LOCAL 503, by and Through its President, Anthony Alicchio Defendant.
For Plaintiff: William J. Conley, Jr., Esq.; Deidre E. Carreno, Esq. For Defendant: Gary T. Gentile, Esq.
For Plaintiff: William J. Conley, Jr., Esq.; Deidre E. Carreno, Esq.
For Defendant: Gary T. Gentile, Esq.
DECISION
TAFT-CARTER, J.
Before this Court for decision are the Town of Westerly's (the Town) Motion to Vacate Arbitration Award and Motion to Stay Implementation of Arbitration Award. Also, before this Court are the International Brotherhood of Police Officers, Local 503, by and through its President, Anthony Alicchio's (IBPO), objection to the Town's motions and Motion to Confirm Arbitration Award. The Court heard the motions on May 14, 2021. Jurisdiction is pursuant to G.L. 1956 § 28-9-14.
I Facts and Travel
The current dispute arises from an arbitration award that was issued after the Town deemed two detectives ineligible to participate in the promotional process for the rank of lieutenant. The Town and IBPO entered into a collective bargaining agreement (CBA) that was effective from July 1, 2016 through June 30, 2019. (Pl.'s Mem. at 1.) The CBA applied to "all full-time, permanently appointed employees holding the rank of Detective Sergeant, Sergeant, Detective, Corporal or Patrolman, excluding the Chief of Police, Captain, Lieutenants and all other employees." (Pl.'s Misc. Pet. 1, Ex. 1 at 1, hereinafter referred to as the "CBA"). Article XII, Section 4 - Promotions of the CBA stated: "All promotions within the Police Department shall be made in accordance with the procedures established by the Town Charter of the Town of Westerly and the Ordinances of said Town. Alleged violations of said procedures shall be subject to the Grievance Procedure." (CBA at 28.) The pertinent provisions of the incorporated Town Ordinance stated:
"§ 45-2. Promotion procedures.
The following qualifications and procedures shall be required and followed for the promotion of members of the Police Department.
A. Eligibility.
(1) A member of the bargaining unit must have five years of service, including probationary period, to be eligible for promotion to Sergeant and/or Detective.
(2) Any Sergeant may take a promotional examination for the rank of Lieutenant but must serve in the rank of Sergeant for at least one year to be eligible for promotion to the rank of Lieutenant."
B. Procedures. At least 30 days prior to any promotional examination, the Town Manager shall cause notice of such examination to be posted on the Police Department bulletin board. Such notice shall contain among other information the source of all materials from which the written examination will be taken.
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"D. Administration.
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"(5) The Town shall give promotional examinations every two years. Any member of the bargaining unit having three years of eligibility may be placed on the list and will be ineligible for appointment after completion of five years of service." (Pl.'s Misc. Pet. Ex. 2, at 1-2, hereinafter referred to as the "Town Ordinance" (emphasis added).)
Further, Article XI: Grievances of the CBA laid out the Grievance Procedure and provides that "[t]he decision and award of the arbitrator shall be final and binding upon the parties. However, the arbitrator shall have no authority to add to, detract from, modify, or disregard any of the provisions of this [CBA]." (CBA at 26-27.)
The IBPO filed a demand for arbitration stating that the Town had violated the CBA by refusing to allow the two detectives "to participate in the promotional process for the rank of Lieutenant." (Pl.'s Mem. at 4.) The parties appeared at a hearing before the Arbitrator, Mary Ellen Shea, on September 22, 2020. Id. At the hearing, the parties first stipulated the issue to be whether the Town violated Article XII, Section 4, of the CBA when it determined that the detectives were ineligible to sit for the lieutenant's exam and if so, what would the remedy be. (Pl.'s Mem., Ex. 2 at 22:17-24:13, hereinafter referred to as "Hr'g Tr.") After some discussion concerning the fact that the detectives did sit for the exam despite being ineligible, the Arbitrator stated, "So the question as modified at the moment is: Did the Employer violate Article XII, Section 4, of the CBA when it determined Detectives David Turano and Robert Greene were ineligible for promotion to lieutenant?" Id. at 27:14-20.
On December 21, 2020, the Arbitrator issued her award that stated:
"THE ISSUES The parties stipulated to the following statement of the issues to be decided:
Did the Employer violate Article XII, Section 4 of the collective bargaining agreement when it determined [the detectives] ineligible to sit for the lieutenant's promotional examination?
If so, what shall be the remedy?" (Pl.'s Misc. Pet. Ex. 5, at 2, hereinafter referred to as "Arbitrator's Award" (citing Hr'g Tr. at 22-23).)
The Arbitrator found that "[t]he Town violated the collective bargaining agreement when it unilaterally changed the long-standing and mutually accepted interpretation of the Town Ordinance to allow any officer who had served at least one year in the rank of sergeant to take the lieutenant's exam." Id. at 10. Further, she ordered the Town to "allow current sergeants or any officer who had served at least one year in the rank of sergeant to take the exam for promotion to lieutenant." Id.
On February 12, 2021, the Town filed a Miscellaneous Petition requesting this Court to stay and vacate the Arbitration Award. The Town also filed separate motions to stay and to vacate the arbitration award on the same day. The IBPO filed its objection to the Town's motions and its own motion to confirm the Arbitration Award on April 30, 2021.
II Standard of Review
Judicial authority to review or vacate an arbitration award is limited. Rhode Island Council 94, AFSCME, AFL-CIO v. State, 714 A.2d 584, 587 (R.I. 1998). An arbitration award may be vacated when the arbitrator manifestly disregarded the law or the contract, or when the arbitration award was completely irrational. Prudential Property and Casualty Insurance Co. v. Flynn, 687 A.2d 440, 442 (R.I. 1996). As long as the award "draws its essence" from the contract and is based upon a "passably plausible" interpretation of the contract, it is within the arbitrator's authority and not subject to vacation by the Court. Jacinto v. Egan, 120 R.I. 907, 912, 391 A.2d 1173, 1176 (1978). Grounds for vacating an award are provided by statute in § 28-9-18:
"(a) In any of the following cases the court must make an order vacating the award, upon the application of any party to the controversy which was arbitrated:
"(1) When the award was procured by fraud.
"(2) Where the arbitrator or arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final, and definite award upon the subject matter submitted was not made.
"(3) If there was no valid submission or contract, and the objection has been raised under the conditions set forth in § 28-9-13.
"(b) A motion to vacate, modify, or correct an arbitrator's award shall not be entertained by the court unless the award is first implemented by the party seeking its vacation, modification, or correction; provided, the court, upon sufficient cause shown, may order the stay of the award or any part of it upon circumstances and conditions which it may prescribe.
"(c) If the motion to vacate, modify, or correct an arbitrator's award is denied, the moving party shall pay the costs and reasonable attorneys' fees of the prevailing party." Section 28-9-18.
An arbitrator may exceed his or her powers, thereby requiring a court to vacate an arbitration award, if that award fails to "draw its essence" from the collective bargaining agreement or is not based upon a "passably plausible" interpretation of the same. Rhode Island Brotherhood of Correctional Officers v. State of Rhode Island Department of Corrections, 707 A.2d 1229, 1234 (R.I. 1998). Therefore, a court may vacate an award where the arbitrator manifestly disregarded a contractual provision or reached an irrational result, R.I. Council 94, AFSCME, AFL-CIO, 714 A.2d at 587, disregarded clear-cut contractual language, or attributed to the language "a meaning that is other than that which is plainly expressed." State v. Rhode Island Employment Security Alliance, Local 401, SEIU, AFL-CIO, 840 A.2d 1093, 1096 (R.I. 2003).
A party asserting that the arbitrator has exceeded his or her authority bears the burden of proving this contention. Coventry Teachers' Alliance v. Coventry School Committee, 417 A.2d 886, 888 (R.I. 1980). In such a case, "every reasonable presumption in favor of the award will be made." Id. Furthermore, "[t]he statutory authority to vacate an arbitration award where the arbitrators exceeded their powers does not authorize a judicial re-examination of the relevant contractual provisions." State, Department of Mental Health, Retardation, and Hospitals v. Rhode Island Council 94, A.F.S.C.M.E., AFL-CIO, 692 A.2d 318, 322 n.11 (R.I. 1997) (internal quotations omitted).
III
Analysis
A
Substantive Arbitrability
The Court must first determine whether the issue placed before the arbitrator was arbitrable. Rhode Island Brotherhood of Correctional Officers, 707 A.2d at 1234. Whether a dispute is arbitrable is a question of law that this Court reviews de novo. State, Department of Corrections v. Rhode Island Brotherhood of Correctional Officers, 866 A.2d 1241, 1247 (R.I. 2005). When undertaking this de novo review, the Court should do so "without deference to the arbitrator." Gauthier v. City of Cranston, No. PM-2012-5402, 2014 WL 986910, at *5 (R.I. Super. Mar. 7, 2014) (citing Providence School Board v. Providence Teachers Union Local 958, AFT, AFL-CIO, 68 A.3d 505, 511 (R.I. 2013)). "If substantive arbitrability is lacking, the dispute 'must be resolved, if at all, judicially rather than through arbitration.'" Id. at *4 (quoting City of Newport v. Local 1080, International Association of Firefighters, AFL-CIO, 54 A.3d 976, 982 (R.I. 2012)).
In determining arbitrability the Court is mindful that it has been long established that "'arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'" AT& T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648 (1986) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 882 (1960)). When uncertainty exists about whether a dispute is arbitrable, our Supreme Court "has enunciated a policy in favor of resolving any doubt in favor of arbitration." Brown v. Amaral, 460 A.2d 7, 10 (R.I. 1983) (citing School Committee of City of Pawtucket v. Pawtucket Teachers Alliance AFT Local 930, 120 R.I. 810, 815, 390 A.2d 386, 389 (1978)).
Nevertheless, "'[n]o one is under a duty to arbitrate unless with clear language he [or she] has agreed to do so.'" Stanley-Bostitch, Inc. v. Regenerative Environmental Equipment Co., Inc., 697 A.2d 323, 326 (R.I. 1997) (quoting Bush v. Nationwide Mutual Insurance Co., 448 A.2d 782, 784 (R.I. 1982)). Thus, "an arbitrator is 'powerless to arbitrate that which is not arbitrable in the first place.'" State Department of Children, Youth and Families v. Rhode Island Council 94, AFSCME, AFL-CIO, 713 A.2d 1250, 1253-54 (R.I. 1998) (quoting Rhode Island Brotherhood of Correctional Officers, 707 A.2d at 1234).
Additionally, whether a particular collective bargaining agreement contains clear language creating a duty to arbitrate a particular dispute is a matter for judicial determination. Local Union 1393 International Brotherhood of Electrical Workers, AFL-CIO v. Utilities District of Western Indiana Rural Electric Membership Cooperative, 167 F.3d 1181, 1183 (7th Cir. 1999) (citing AT& T Technologies, Inc., 475 U.S. at 649).
Here, the Town argues that the Arbitrator exceeded her power by rendering a decision that was not arbitrable because the position of lieutenant is not covered by the CBA. (Pl.'s Mem. at 7.) The Town further contends that it did not agree to submit Section 45-2 of the Town's Code of Ordinances to arbitration and, therefore, any interpretation of the ordinance was not proper. Id. at 8. The IBPO disagrees and argues that the grievances are substantively arbitrable because the promotion eligibility and qualification requirements are governed by Westerly Town Ordinance 45-2, which is incorporated into the CBA. (Def.'s Mem. at 13.) In addition, the IBPO argues that the Town agreed to resolve disputes relating to promotions through the grievance procedure contained in the CBA. Id.
The clear and unambiguous language of the CBA includes an agreement to arbitrate grievances relating to promotion disputes. (CBA at 26, 28.) Under the terms of Article XI of the CBA: a Grievance is defined as "any difference arising between the Town and the [IBPO] … with respect to … any allegation of the [IBPO] that any of the provisions of this Agreement have been violated[, ]" and the parties agreed to handle such a grievance in arbitration. Id. at 26. Furthermore, the CBA includes clear language that "all promotions" are subject to the Town Ordinance, and any "[a]lleged violations of said procedures" would be subject to the "Grievance Procedure," which culminates in arbitration. Id. at 28.
The Town's argument that the grievances are not arbitrable because the position of lieutenant is not included in the CBA is unpersuasive. The CBA clearly subjects promotions to the Grievance Procedure. (CBA at 28.) There is a clear expression of the intent of the parties to submit these issues relating to the promotional procedures to arbitration. Id. Therefore, the issue before the Arbitrator was a proper subject for arbitration and the Court finds that the instant matters were arbitrable. See AT& T Technologies, Inc., 475 U.S. at 648-50.
B The Merits
Having found that the issues were arbitrable, the Court will now address the merits of the Arbitrator's Award to determine whether there are grounds to vacate the award. See § 28-9-18(a)(2).
The Town argues that the Arbitrator exceeded her powers because she disregarded "the plain and unambiguous language contained in the CBA and thus [reached] a completely irrational result that does not draw its essence from the CBA." (Pl.'s Mem. at 9.) Specifically, the Town maintains that: the Arbitrator engaged in "mental gymnastics" to create an ambiguity in the Town Ordinance allowing her to consider past practices; the Arbitrator manifestly disregarded the law with respect to statutory interpretation; and implementation of the award will result in irreparable harm. Id. at 9, 14, 16. The IBPO, on the other hand, argues that the Arbitrator did not exceed her power because her award "draws its essence" from the terms of the CBA since the CBA required that all promotions be made in accordance with the Town Ordinance. (Def.'s Mem. at 17.)
The terms of CBAs are interpreted under the general principles of contract law. See Providence Teachers Union v. Providence School Board, 689 A.2d 388, 392-93 (R.I. 1997); Anderson v. Town of Smithfield, No. C.A. PC-05-2823, 2005 WL 3481627, at *4 (Dec. 20, 2005) (citing Webster v. Perrotta, 774 A.2d 68, 87-88 (R.I. 2001)). Courts must strive to ascertain the intent of the parties when interpretating a CBA. Woonsocket Teachers' Guild, Local 951 v. School Committee of City of Woonsocket, 117 R.I. 373, 376, 367 A.2d 203, 205 (R.I. 1976). When considering whether a contract is clear and unambiguous, courts adhere to the rule of interpretation that requires the document "be viewed in its entirety and its language is given its plain, ordinary and usual meaning." Garden City Treatment Center, Inc. v. Coordinated Health Partners, Inc., 852 A.2d 535, 542 (R.I. 2004) (citing Rubery v. Downing Corp., 760 A.2d 945, 947 (R.I. 2000)). A contract is ambiguous only when it is susceptible to more than one meaning. Id. at 541-42.
The Rhode Island Supreme Court has explained that "[a]bsent a manifest disregard of a contractual provision or a completely irrational result, the award will be upheld." Town of Coventry v. Turco, 574 A.2d 143, 146 (R.I. 1990). "Moreover, as long as an arbitrator's award 'draws its essence' from the contract and is based upon a 'passably plausible' interpretation of the contract, it is within the arbitrator's authority and [the Court's] review must end." Id. (quoting Jacinto, 120 R.I. at 912, 391 A.2d at 1176).
There is no dispute that Article XII, Section 4 entitled "Promotions" is the applicable provision governing the arbitration. (Pl.'s Mem. at 11; Def.'s Mem. at 15.) The clear language of the provision states that: "All promotions within the Police Department shall be made in accordance with the procedures established by the Town Charter of the Town of Westerly and the Ordinances of said Town. Alleged violations of said procedures shall be subject to the Grievance Procedure." (CBA at 28.) In her award the Arbitrator examined the Ordinance as a whole and rejected the Town's narrow interpretation of the Ordinance. (Arbitrator's Award at 6-7.) The Town believes that in doing so, the Arbitrator exceeded her authority and attempted to interpret the laws implemented by the town council when she reviewed the promotional process as set forth in the Town Ordinance. (Pl.'s Mem. at 12-13.) The Town cites to City of Newport v. Lama, 797 A.2d 470, 473 (R.I. 2002), for that proposition. However, Lama is distinguishable from the instant matter. In Lama, the arbitrator created ambiguity. Lama, 797 A.2d at 473. The Supreme Court concluded that because the CBA did not contain language limiting the city's authority to amend an ordinance, the arbitrator exceeded her authority when she based her decision on a limitation not contained within the CBA. Id.
In another instance, the Supreme Court found that an arbitrator's award was not "passably plausible" because it was "wholly inconsistent with the plain language of the CBA." Woonsocket Teachers' Guild, Local 951, AFT v. Woonsocket School Committee, 770 A.2d 834, 839 (R.I. 2001). In that case, the arbitrator found that a school nurse was not required to dispense medicine to certain students because the CBA did not permit her to serve students who "were not under the exclusive direction and control of the Woonsocket Education Department." Id. However, the Court found that there was no provision in the CBA that limited the nurse's duty to serve only students who were in the direct and exclusive control of the Education Department, and thus, the arbitrator "based her decision on a limitation contained nowhere within the CBA." Id.
Here, the Town argues that the Arbitrator's Award "is based on a limitation contained nowhere in the parties' CBA" because the "the Arbitrator manifestly disregarded the clear and unambiguous language of the CBA and improperly sought to find an ambiguity in the ordinance, which was function of the Town's legislature." (Pl.'s Mem. at 13.) However, unlike Lama, the Arbitrator reviewed the Town Ordinance that was referred to in the CBA and used other sources of information to reach her conclusion. (Arbitrator's Award at 6-8.) Furthermore, the Arbitrator disagreed with the Town's assertion that the issue could be resolved by interpreting one sentence of the Town Ordinance. Id. at 6. She instead reviewed the CBA, looked to the Town Ordinance as a whole and examined other sources to determine that by violating the incorporated Ordinance, which the CBA required be followed, the Town violated the CBA. Id. at 6-7. Therefore, this Court finds that the Arbitrator's Award drew "its essence" from the CBA and gave a "passably plausible" interpretation of the CBA, even when she looked to the incorporated Town Ordinance after rejecting the Town's narrow interpretation of the Ordinance. See Turco, 574 A.2d at 146.
The Town also argues that the Arbitrator exceeded her powers by looking to "past practices" between the parties. (Pl.'s Mem. at 12.) It is true that an arbitrator can only look to past practices between parties to a CBA when:
"(1) the collective bargaining agreement does not contain an express provision that is the subject of the grievance, or
"(2) the collective bargaining agreement contains a provision that is unclear and ambiguous, or
"(3) the collective bargaining agreement contains a provision which has been mutually agreed upon by the parties that preserves existing past practices for the duration of the collective bargaining agreement." Section 28-9-27(a).
As mentioned, the Court's inquiry ends "as long as an arbitrator's award 'draws its essence' from the contract and is based upon a 'passably plausible' interpretation of the contract." Turco, 574 A.2d at 146. This Court must "determine whether the arbitrator has resolved a grievance by considering the proper sources, such as the contract in effect between the parties." Id. The United States Supreme Court has noted that the arbitrator "may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement." United States Steelworkers of America, 363 U.S. at 597.
Here, upon review of the Arbitrator's Award, it is clear that she reviewed the two prior notices of the lieutenant examination in order to understand the Town Ordinance as whole. (Arbitrator's Award at 7.) She recognized that the eligibility requirements contained in the Town Ordinance were not a standalone provision but also contained an ambiguous provision as to the requirements necessary for the notices and, therefore, looked to the prior notices for guidance. Id. at 7-8. The Arbitrator found the Town's position to be too narrow, and she needed to review what was introduced into evidence to determine if there was a violation of the CBA. Id. There is no dispute that the CBA governed all promotions within the police department and that the parties agreed to abide by the Town Ordinance's promotion procedures, and that the Ordinance was incorporated into the CBA. (CBA at 28.) Therefore, it is this Court's view that the Arbitrator's Award and her interpretation of the CBA was rational and "passably plausible," and her award "drew its essence" from the CBA when she looked to the Town Ordinance and prior notices for guidance. See Turco, 574 A.2d at 146.
C Motion to Stay
Typically, a party's motion to vacate an arbitrator's award will not be entertained by this Court unless the party seeking to vacate the award first implements the award. See § 28-9-18(b). However, "the court, upon sufficient cause shown, may order the stay of the award or any part of it upon circumstances and conditions which it may prescribe." Id. The moving party must demonstrate that implementation of the award would cause irreparable harm and that the plaintiff was likely to succeed on its motion to vacate the award. Turco, 574 A.2d at 146. However, a trial court's discretion to stay implementation of the award "is further constrained by § 10-3-11[, ] which provides that 'any party to the arbitration may apply to the court for an order confirming the award, and thereupon the court must grant the order confirming the award unless the award is vacated, modified or corrected.'" Aponik v. Lauricella, 844 A.2d 698, 705 (R.I. 2004) (citing G.L. 1956 § 10-3-11) (ruling that the hearing justice did not err when he failed to rule on the motion to stay, but rather, "the hearing justice exercised his statutory authority, confirmed the arbitrator's modified award, and thereby implicitly denied defendants' motions to vacate and for stay of enforcement").
Here, the Town filed both a motion to stay implementation of the arbitrator's award and a motion to vacate the award at the same time. The IBPO has filed a motion to confirm that award. Therefore, due the constraints in § 10-3-11, the Court's decision herein renders the motion to stay moot. See id.; see also State v. Rhode Island Probation and Parole Association, No. PM-2015-3201, 2016 WL 3541421, at * 5 (R.I. Super. June 22, 2016) (citing Turco, 574 A.2d at 146; Aponik, 844 A.2d at 705).
IV Conclusion
For the reasons stated above, the Court denies the Town's Motion to Vacate the Arbitration Award and the Court grants IBPO's Motion to Confirm the Arbitration Award. Accordingly, the Town's Motion to Stay Implementation of Arbitration Award is moot. Counsel shall prepare the appropriate order.