Rhode Island Broth. of Correctional Officers v. State Dept. of Corrections

• Decision Date: 15 January 1998
• Docket Number: No. 96-240-A,96-240-A
• Citation: 707 A.2d 1229
• Parties: 157 L.R.R.M. (BNA) 2352 RHODE ISLAND BROTHERHOOD OF CORRECTIONAL OFFICERS v. STATE of Rhode Island DEPARTMENT OF CORRECTIONS. ppeal.
• Court: Rhode Island Supreme Court

Page 1229

707 A.2d 1229

157 L.R.R.M. (BNA) 2352

RHODE ISLAND BROTHERHOOD OF CORRECTIONAL OFFICERS v. STATE of Rhode Island DEPARTMENT OF CORRECTIONS.

No. 96-240-Appeal.

Supreme Court of Rhode Island.

Jan. 15, 1998.

John A. McFadyen, 3rd., Gerard P. Cobleigh, Warwick, Jean Rosiello, for Plaintiff.

Joseph S. Larisa, Jr., William E. Smith, Providence, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.

OPINION

FLANDERS, Justice.

Can the state take steps to withhold approval of certain union members' requests to take paid leaves from their state jobs to work full time on union business? Can it do so without resort to collective bargaining and notwithstanding the state's past practice of approving such requests? Given the circumstances presented by this appeal, we answer these questions in the affirmative.

Over the years the State of Rhode Island (state) Department of Corrections (DOC) has engaged in a practice of approving various employees' requests to take paid leave from their government jobs to work on union business. In more recent years this past practice had grown to the point where, in addition to approving requests for employees to take as-needed paid leaves to pursue sundry union interests, DOC was paying as many as five of its government employees to work full time on union matters. The legal issue raised by this appeal is whether an arbitrator can bar the state's attempt to squelch this past practice without using the collective bargaining process to do so. An arbitrator ruled (and the Superior Court later confirmed) that a DOC director's unwritten agreement to allow DOC employees to take up to 160 hours per week to work full time on union business, coupled with the existence of the DOC's past practice of allowing paid full-time union leave, precludes any effort by the state to change this practice unilaterally. For the reasons set forth below, we reverse and vacate both the arbitration award and the Superior Court's confirmatory judgment.

I Facts and Travel

On appeal the state seeks to overturn a Superior Court judgment confirming an arbitrator's award in favor of certain DOC employees who are represented by the Rhode Island Brotherhood of Correctional Officers (the union). The arbitrator found that a particular memorandum issued by Lincoln Almond, the present Governor of Rhode Island (Governor or Governor Almond), together with implementing guidelines, unlawfully attempted to effect a unilateral change in the collective-bargaining agreement (CBA) between DOC and the union. The union claims that several CBA provisions prevent the state from changing DOC's past practices with respect to approving requests for paid union leave, including its past practice of approving requests for a certain number of union employees to work full time on union business while they are still being paid by the state (paid full-time union leave). The union argued, and the arbitrator agreed, that the Governor's unilateral attempt to eliminate this past practice violated the applicable CBA. The background for this dispute follows.

On December 29, 1994, the state and the union entered into a CBA for the period 1994 through 1996. The state signatories to the CBA were Governor Almond's predecessor, former Governor Bruce Sundlun, ¹ and various other executive department officials who were members of the Sundlun administration, including the director of administration, the DOC director, and the state's labor relations administrator. The union's president, its attorney, and its first vice president signed for the union. Among other terms, this CBA contained several provisions relevant to the issue of paid union leave for DOC employees:

Article 4.1: "The Brotherhood recognizes that except as limited, abridged, or relinquished by the terms and provisions of this Agreement, the right to manage, direct, or supervise the operations of the State and the employees is vested solely in the State.

For example, the employer shall have the exclusive right, subject to the provisions of this Agreement and consistent with applicable laws and regulations:

A. To direct employees in the performance of official duties;

* * *

E. To relieve employees from duties because of lack of work or for other legitimate reasons."

Article 15.1: "[Employees] shall be granted time off with pay during working hours to investigate and seek to settle grievances, to attend hearings, meetings, conferences relating to union business and contract negotiations with State officials. Such time shall be granted with the approval of the Department director or his designee, which said approval shall not be unreasonably withheld."

Article 32.1: "It is hereby agreed that any alteration or modification of this Agreement shall be binding upon the parties hereto only if executed in writing."

Article 35.5: "Except as otherwise expressly provided herein, all privileges and benefits which employees have hereto enjoyed shall be maintained and continued by the State during the term of this Agreement."

On March 27, 1995, Governor Almond issued a memorandum stating that "certain reasonable procedures" were to be followed before any employees of the various state departments and agencies (including DOC employees) would be allowed to take paid union leave. Thereafter on or about May 19, 1995, the executive department published and distributed guidelines implementing the earlier gubernatorial memorandum. The guidelines contained "examples of activities that would normally not be approved for union business release time with pay" under the CBA. Included among the examples cited were some union-related activities that in the past had been approved for union-business-release time. The union responded by filing a grievance and requesting arbitration.

On August 28, 1995, an arbitrator sustained the union's grievance and determined that the state--by means of the Governor's memorandum and implementing guidelines--had violated the CBA by attempting to alter its terms unilaterally. First, he found that the meaning of CBA article 15.1 was clear and unambiguous and expressly permitted paid union leave. Second, the arbitrator concluded that the Governor's memorandum and guidelines attempted to alter the practices and procedures that were protected by article 35.5, the CBA's "privileges and benefits" clause. Specifically the arbitrator found that DOC's past practices with respect to allowing paid union leave had been in place for more than twenty years and that since January 1991 the DOC had agreed to allow a minimum of four and a maximum of five union officials to perform paid full-time union work on a daily basis. Moreover, he found that in January 1994 the DOC director had entered into an unwritten agreement with the union allowing employees to take full-time paid union leave for up to a maximum of 160 hours per week. The existence of these unwritten but agreed-upon practices, according to the arbitrator, validated the union's contention that the CBA's provision for paid union leave (article 15.1), together with the privileges-and-benefits clause (article 35.5), precluded the Governor's 1995 actions whereby he had attempted to alter these past practices unilaterally. ² Accordingly the arbitrator ordered the state (1) to cease and desist from enforcing these unilateral changes and (2) to restore paid union leave time lost during the state's attempted imposition of these changes.

On September 8, 1995, the union asked the Superior Court to confirm the arbitrator's award. Shortly thereafter, the state moved for a stay pending a hearing on its own motion to vacate the award. However, instead of ruling on the state's motion to stay, the court opted to confirm the arbitrator's award and to deny the state's motion to vacate. In sum the court agreed with the arbitrator that DOC's past practices with respect to allowing paid union leave--practices that were still being followed at the time of the Governor's 1995 memorandum and guidelines--satisfied the "past practices" criteria laid out in Rhode Island Court Reporters Alliance v. State, 591 A.2d 376, 378-79 (R.I.1991) (the Court Reporters case) (announcing five criteria for determining whether evidence exists of the parties' mutual intent to adopt a past practice as binding). As a result the court confirmed the arbitrator's ruling that DOC's past practice of granting paid full-time union leave had attained the status of an enforceable privilege and benefit under article 35.5 of the CBA.

Second, the Superior Court rejected the state's argument that the Governor's attempts to change these past practices and to curb paid full-time union leave were included within those management rights reserved to the state under article 4.1 of the CBA. It concluded that the state's article 4.1 management rights were limited and abridged by the CBA provisions allowing paid union leave and continuing any privileges and benefits previously enjoyed by DOC employees. Third, the court found that the language of article 4.1 detailing management's reserved rights did not directly authorize its claimed entitlement to refuse approval for paid union leave. Finally, the Superior Court rejected the state's argument that the arbitration award should be vacated because the award violated the Rhode Island Labor Relations Act, G.L.1956 § 28-7-13(3)(iii) (declaring employer compensation for union work to be an unfair labor practice unless it is restricted to time spent conferring with the employer during working hours). ³

Because of § 28-7-2(e)'s pronouncement that "[a]ll the provisions of this chapter shall be liberally construed for the accomplishment of [the statute's stated] purpose[s]," the Superior Court construed § 28-7-13(3) liberally in favor of the union and determined that DOC's past practices with respect to allowing paid union leave were not inconsistent with the language and policy of this statute.

On appeal the...