When city officials in Newport reduced the amount that municipal workers could
collect in work-related injury pay from 100 percent to less than 75 percent in
1996, their union objected, arguing that the municipality couldn't change a
contract without going through negotiations. Unable to resolve the dispute, the
two sides presented the case to an arbitrator, who ruled in favor of the
union.
But the victory for the union, the American Federation of State, County, and
Municipal Employees (AFSCME), Council 94, was short-lived. After Newport took
an appeal to the courts, the Rhode Island Supreme Court decided in May to allow
the benefit reduction, declaring that the arbitrator "manifestly disregarded
the clear and unambiguous language of the contract."
The ruling was merely the latest in a series of decisions against unions by
the state's highest court. For more than a decade, the Rhode Island Supreme
Court has been chipping away at the power of public employee unions in the work
place. According to research commissioned by the Rhode Island Brotherhood of
Correctional Officers, the court ruled for management in 20 of 23 rulings since
1990, allowing the state to replace union workers with convicts, forcing
correctional officers to work mandatory overtime, and permitting Woonsocket to
supplant union workers with employees of the Marriott Corporation
The sequence of rulings represent a significant change in the Rhode Island
Supreme Court's stance toward arbitration, a common form of resolving labor
disputes which is meant to avoid the time, trouble, and expense of going to
court. The court has also restricted the power of the Rhode Island Labor
Relations Board, a branch of state government that regulates public sector
labor relations, to prevent unfair bargaining practices. And despite two
union-backed changes in state law meant to reverse the situation, the high
court continues to rule that public employers have broad powers to fire
workers.
Not surprisingly, unionists are disgusted. As Richard Skolnik, a lawyer for
the Rhode Island Federation of Teachers, put it during an October workshop at
the Providence Biltmore on recent state labor cases, "Labor's been beaten up
for 10 years." Adds Richard Ferruccio, president of the Rhode Island
Brotherhood of Correctional Officers, "They [the cases] are all the same --
when you get to the end, labor gets the shaft."
During the workshop, Margaret Hogan, a labor relations board lawyer,
indicated, "For all intents and purposes, past practice is dead," and she
described a related recent Supreme Court ruling as "bizarre." A fellow
panelist, John Breguet, chief counsel for the state Office of Labor Relations,
did not disagree, but he more diplomatically described the decision as
"unexpected."
Although union representatives are aghast, management lawyers say the court's
new stance is long overdue. The Rhode Island Supreme Court sensed an
"anti-democratic" trend in which unions, through arbitration decisions, had
more control over the operation of government than the elected representatives
of the people, comments Daniel Kinder, a Providence lawyer who represents town
councils and school committees. "They [the court] have redressed a problem that
should have been of great concern to the citizens in this state," Kinder says.
Because unions function to make everything a subject for bargaining, he says,
"The court needed to step in and say there's only so far you can go."
Providence lawyer Stephen Robinson, who represents several Rhode Island school
committees, agrees. "Public employee labor became so powerful in the late
1970s, they were way over into management's prerogative and sphere of
influence," Robinson says. In the '80s, he adds, "There was a general sense
that out-of-state arbitrators were running the state."
Ferruccio, however, dismisses such assertions as "totally ridiculous," noting
that union and management jointly select arbitrators. The Rhode Island Supreme
Court previously took a "hands-off" approach, he says, and declined to
interfere with arbitrators' rulings. In a view backed by John Vars, senior
business agent for AFSCME, Council 94, Ferruccio says the high court is now
meddling in labor management cases about which it knows little. Says Vars,
"They're getting a second and third chance to overturn an arbitrator's award
that is supposed to be final and binding." If an employer wants to reverse an
arbitration award, Vars argues, it should push the issue during bargaining for
the next contract instead of running to the courts.
Frank J. Williams, who has cast a prominent public profile since becoming
chief justice of the Supreme Court in February 2001, declined to be interviewed
for this story. The other justices also declined to comment, according to Dyana
Koelsch, spokeswoman for the high court, who agrees that the court has changed
its interpretation of the law to management's benefit. "They [the justices] do
believe that the court has evolved over the years to more of a balance of
public policy," Koelsch says, "when they have to weigh the public policy
against arbitrator's awards, and they say the cases show that evolving
balance."
The Rhode Island Supreme Court's change in support of management can't be
traced to a single event. But many labor lawyers say the 1992 retirement of
Associate Justice Thomas Kelleher and Governor Lincoln Almond's 1995 elevation
of Joseph Weisberger to chief justice were decisive.
Also important was the reduction of labor's influence over judicial
appointments through the General Assembly, which has been dominated by the
Democratic Party since the Great Depression. In 1994, responding to judicial
scandals, the legislature changed the way judges are selected. Supreme Court
justices were previously elected by the General Assembly, whose membership
includes union staffers and union members. But now, thanks to a constitutional
amendment promoted by Common Cause of Rhode Island and other groups, the Senate
merely confirms appointments made by the governor from a list supplied by the
Judicial Nominating Commission.
The appointments to the high court by the Republican Almond, especially that
of Robert Flanders, solidified the court's new philosophy of reversing
arbitrators. Flanders, a favorite of good government groups, often writes the
court's most lucid rulings, and as part of a court that frequently issues
unsigned decisions, he isn't afraid to author stinging dissents. Practitioners
of labor law, however, say he consistently rules against labor. At the October
workshop, for example, Breguet described Flanders as the court's "most
conservative and pro-management" member.
Williams's appointment as chief justice has not altered the court's stance, as
the Newport disability case demonstrates. And the recent death of Justice John
Bourcier has returned Weisberger, a leading force in bringing about the court's
about-face on arbitration, to temporarily fill the vacancy on the court.
For now, Vars and Ferruccio say their unions continue to file grievances
without worrying that the case will be lost due to the Supreme Court's new
stance. Unions generally lose about half of their cases in arbitration, Vars
notes, and accept defeat, albeit grudgingly. But public sector management's
growing use of the courts to turn defeats into victories is frustrating, he
says, adding, "You think you win, but you don't win."
Vars says the court's rulings send a clear message to town managers, mayors,
school committees, and department directors in state government: "Even though
there is contractual language, keep taking chances [by appealing arbitration
decisions to the court], because we're overturning things."
The trend led Ferruccio to write in February to a Supreme Court-sponsored
panel on alternative dispute resolution, indicating, "Arbitration is no longer
a viable mechanism for the resolution of disputes in the public sector." If
this sense grows, unions may feel forced to use far more disruptive and
potentially costly methods, such as sickouts, work slowdowns, and strikes, to
redress perceived wrongs.
CUMBERLAND TEACHER Paula
McKeown had no idea she would trigger a huge
change in Rhode Island labor law when she decided to seek a graduate degree in
chemistry from the University of Connecticut in March 1975. Her union contract
granted teachers' one year of unpaid leave to earn graduate degrees if they had
five years of seniority, but McKeown had only three years. Other sections of
the contract, however, stated that the superintendent may grant unpaid leaves
for personal reasons and require the school committee to establish "reasonable"
work rules. When the school department denied McKeown's leave request, she
pressed ahead, filing a grievance and arguing that the department had a pattern
of unfairly granting and denying leaves in violation of a contract.
The school committee was not convinced, so the union took the case to
arbitration. "We thought it was a long shot," admits then-union president
Jerome Egan, but the union won. The Cumberland School Department was outraged,
and it took what was an unusual step at the time by asking the Superior Court
to overturn the arbitrator's award.
Arbitration is meant to avoid the hassle and cost of going to court. A
traditional way of resolving business disputes (George Washington provided for
a three-member arbitration panel to resolve disputes over his will),
arbitration became common in labor relations during World War II, according to
the labor arbitration bible, How Arbitration Works (Bureau of National
Affairs, 1997). Wanting to avoid strikes that would disrupt wartime production,
unions and management agreed to abide by the decisions of a neutral person.
Almost all union contracts, whether they cover prison guards, teachers,
autoworkers, or janitors, now provide that disputes arising over firings,
promotions, or other issues during the course of a contract will be submitted
to arbitration. The arbitrator, usually a lawyer or professor, is almost always
selected by union and management from a list compiled by either the US
government's Federal Mediation and Conciliation Service or the independent
American Arbitration Association. Arbitrators do not issue advisory opinions.
Almost all union contracts include the sentence, "The decision of the
arbitrator shall be final and binding." Private sector arbitration awards,
covered by federal law, are almost never appealed to the federal courts. And
until the last decade, the Rhode Island Supreme Court rarely overturned public
sector cases. State law allows the courts to overturn arbitrators' decisions
only if they were secured by fraud, if arbitrators "exceeded their powers," or
if no valid contract exists.
Writing for the majority in 1978, Justice Thomas Kelleher, a former Democratic
legislator, found the arbitration award in McKeown's case perfectly proper.
Citing long-established US Supreme Court rulings that an arbitrator should be
overturned only in rare cases, Kelleher wrote, "Judicial reversal of an
arbitration award based solely upon a disagreement with the arbitrator's
interpretation of the contract nullifies the bargain of the parties and
threatens the strong public policy that favors private settlement of
grievances."
Kelleher's decision was not surprising because it upheld the US Supreme
Court's longstanding precedent in private sector arbitration cases. But Justice
Joseph Weisberger's dissent scared some union people. The former Republican
Senate minority leader argued that US Supreme Court precedents did not apply
because government employees were different from private sector employees. The
Rhode Island Supreme Court should take an active role in public sector cases,
Weisberger argued, balancing contracts and state law, and unions should prevail
only if they could present "clear expressions of willingness" by "the sovereign
power of the state."
Weisberger's new doctrine called for increasing court involvement in public
sector labor relations. "I said way back then," recalls former Cumberland union
official Egan, now assistant executive director of the National Education
Association of Rhode Island, "God help us if this guy ever gets into power." It
took 10 years, but by 1988, Weisberger was in the majority, and Kelleher found
himself writing the dissent.
This time, state had fired a Rhode Island Medical Center nurse with 22 years
of experience after she twice dragged an elderly, noisy, and hostile patient
across the floor and deposited her outside in the bitter cold March weather.
Agreeing that her behavior merited significant discipline, the arbitrator
reduced the firing to a three-month suspension. The state appealed and
then-Justice Florence Murray, writing for the majority, overturned the
arbitrator and upheld the firing.
Once the arbitrator found just cause for discipline, Murray wrote, he had no
authority under state law to modify the penalty. Kelleher objected, saying the
decision reversed the longstanding precedent of deferring to arbitrators'
decisions, and he predicted the ruling would lead to a " `judicial open season'
in which arbitrators' awards will be fair game for any member of the judiciary
who finds any degree of fault with the arbitrator's disposition."
MEANWHILE, the unions rushed off to the legislature, trying to stop the
jurist's prediction from coming true. In 1990, they succeeded in enacting a law
that clearly stated in cases of termination, suspension or reprimand, "The
arbitrator shall have the authority to modify the penalty imposed by the
employer." But the trend elsewhere was against labor. Kelleher retired in 1992,
and Weisberger temporarily became chief justice in 1993 when Chief Justice
Thomas Fay, a former Democratic House leader, resigned from the court amidst a
financial and traffic ticket-fixing scandal. The Rhode Island Constitution was
then amended to remove the Democratic-dominated legislature from the process of
choosing justices for the Supreme Court.
In 1995, despite the new law, the Weisberger court reaffirmed Murray's
disciplinary theory. In an unsigned decision, the court overturned an
arbitrator and upheld Pawtucket's firing of a public works employee who had
assaulted a supervisor.
In 1996, the legislature again tried to make itself clear by passing a
union-backed proposal, stating that unless a contract specifically said
otherwise, "The arbitrator shall have the authority to modify the penalty
imposed by the employer."
In the late 1990s, with new Almond appointees Robert Flanders and Maureen
McKenna Goldberg, the Rhode Island Supreme Court barreled ahead, continuing to
reverse arbitrators in discipline cases, despite legislative attempts to stop
it. In 1991, Maurice Howie, a state Department of Children, Youth, and Families
home supervisor, retained his job and was given leave without pay to serve
prison time in connection with a domestic assault and fraudulent check writing
conviction. But eight months later, when a reporter inquired about the case,
Howie was fired. An arbitrator declared the firing unfair and ordered Howie
rehired, but when the court finally ruled on the case in 1998, Flanders,
writing for the majority, upheld the firing, citing DCYF's responsibility,
under state law, to protect the children in its care.
The court again reversed an arbitrator's decision in an unsigned 1999
decision. This time the Department of Corrections fired prison guard Jeanne
Riel for failing to inform the department of her arrest for driving while
intoxicated until she was convicted. The arbitrator ruled that a 30-day
suspension was the appropriate penalty for the lapse, but the court reinstated
the firing, writing, "The legislature could not have intended to make the
paramount disciplinary function of the director [of the Department of
Corrections] subject to the caprice of an arbitrator."
The court's new discipline doctrine potentially gives huge power to public
employers in disciplining problem workers. "It's totally unfair," says
Ferruccio of the correction officers' union. "The director is the sole
determining factor of whether someone's working here or not." Even management
lawyer Robinson believes the court has opened the door to the "potential for
abuse among [state government] directors who think they can act in a manner
that does not comport with the principles of progressive discipline and uniform
treatment."
More importantly, the decisions -- coupled with a May 2002 opinion that
declared, "Under our law an arbitrator is free to modify the penalty imposed by
the employer" -- have left labor lawyers confused. There is no rational way to
follow the decisions of this court, says one lawyer who requested anonymity,
adding, "It's virtually impossible to advise my clients because this court is
results-oriented."
Meanwhile, the Supreme Court has proclaimed other new doctrines while
overturning more arbitration decisions. In 1991, in an opinion written by
Murray, the court reversed an arbitrator and ruled that the Department of
Corrections could regularly require guards to work overtime, despite a union
contract provision that allowed mandatory overtime only if an "emergency
situation" exists. In 1997, Flanders authored a unanimous decision, ruling that
although the state Department of Mental Health, Retardation and Hospitals could
require employees to work three consecutive shifts, it could also bar employees
from volunteering for three consecutive shifts. Both changes came without
negotiations with the union. The court also declared both times that broadly
written state laws empowering directors to safely provide for those in its care
preempted union contracts and nullified union victories in arbitration.
"[G]overnment employers may not bargain away authority that has already been
delegated to management or to other governmental agents by state law or other
paramount public policy," Flanders summarized in another decision.
In other cases, the court overturned union victories by declaring the
arbitrator was "irrational" or "exceeded his authority." When Woonsocket
subcontracted its school lunch program and reassigned two drivers covered under
an agreement that limited outside contracting, an arbitrator ordered the two
reinstated to the drivers' jobs. But in a unanimous unsigned 1997 decision, the
Supreme Court declared the finding "irrational" and upheld the city's move.
Using similar reasoning in a unanimous 1998 decision written by Weisberger,
the court overturned an arbitrator's award barring the state from using
convicts to replace state employee janitors, food service workers, and
groundskeepers. Contract clauses barring the state from using outside companies
or other state workers to perform did not apply, Weisberger declared, because
convicts are neither employees nor outside contractors.
The court has also all but eliminated past practice as a union argument. In a
1991 decision overturning an arbitrator's award, the court ruled that denying
parking spaces to court reporters did not violate the contract because it did
not contain a past practice clause. And an arbitrator's award guaranteeing paid
leave to officers of the Smithfield firefighter union, to prepare for
arbitration cases, was overturned for the same reason in 1998.
The court completely gutted past practice in another 1998 case. Writing for a
unanimous court, Flanders overturned an arbitrator's award that entitled
officers of the prison guards' union to be paid for up to 160 hours a week to
handle union business. Although the arbitrator found the state had verbally
agreed to 160 hours, and the contract included a past practice clause, Flanders
voided the decision, declaring that Almond, as a new governor, was allowed to
change past practice. Without an agreement signed by Almond, Flanders wrote,
the 160-hour agreement or a similar accord would not have been "authorized or
enforceable." The decision stunned union leaders, who still grumble about it.
Disagreeing with Flanders, they note that contracts bind employers, like the
State of Rhode Island, regardless of who is the supervisor, department
director, or governor
Citing these cases, management lawyer Will Smith, who is awaiting confirmation
to a US District Court judgeship in Rhode Island, wrote in the Roger
Williams Law Review in 1998, "It is difficult to imagine an arbitrator's
award based on past practice that could survive challenge."
The Rhode Island Supreme Court has also waded into territory previously
reserved for the state Labor Relations Board. Most notable is a 1996 decision,
written by Justice Victoria Lederberg, which, in the view of some labor and
management lawyers, clearly involved an unfair labor practice. In this ruling,
the court overturned the labor board and allowed the Lime Rock Fire District in
Lincoln to fire its six full-time firefighters in the middle of contract
negotiations, replacing them with on-call firefighters.
More recently, in a June decision written by McKenna Goldberg, the court again
overturned a labor board ruling and found that the state Department of
Environmental Management did not violate the law by creating a part-time job
without first negotiating with the union.
In both cases, the court declared that the union should have gone to
arbitration over the issues. That reasoning did not sit well with labor board
lawyer Margaret Hogan, who told the October workshop that the DEM decision,
"fails to recognize that you can have a grievance and an unfair labor practice
on the same facts."
Yet despite the barrage of unfavorable decisions, labor leaders shy from
calling the Rhode Island Supreme Court anti-union, although they are getting
close. "Extremely conservative," says Ferruccio. Adds Vars, "Not friendly to
labor at this time." Putting it more plainly, management lawyer Robinson says,
"The momentum has picked up against unions."
Issue Date: November 8 - 14, 2002
