STATE, DEPT. v. CORRECTIONAL OFFICERS

• Decision Date: 15 February 2005
• Docket Number: No. 2003-313-APPEAL.,2003-313-APPEAL.
• Citation: 866 A.2d 1241
• Parties: STATE of Rhode Island, DEPARTMENT OF CORRECTIONS v. RHODE ISLAND BROTHERHOOD OF CORRECTIONAL OFFICERS.
• Court: Rhode Island Supreme Court

866 A.2d 1241

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

No. 2003-313-APPEAL.

Supreme Court of Rhode Island.

February 15, 2005.

Michael B. Grant, Esq., Pawtucket, for Plaintiff.

Gerard B. Cobleigh, Esq., Warwick, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

GOLDBERG, Justice.

This case came before the Supreme Court for oral argument on December 8, 2004, on appeal by the plaintiff, State of Rhode Island, Department of Corrections (state or DOC), from a Superior Court order granting a motion to confirm an arbitration award of the Rhode Island Brotherhood of Correctional Officers (RIBCO) and denying the plaintiff's motion to vacate the award.¹

Facts and Travel

It is the status of RIBCO, as the successor union to the American Federation of State, County and Municipal Employees, Council 94 (Council 94), that brings this case before the Court. RIBCO, the collective bargaining representative for state-employed correctional officers (unit 2003 or correctional officer unit), succeeded Council 94 as the bargaining agent for adult counselors employed at state correctional facilities (unit 3506 or professional unit) as a result of a consent election. The state and RIBCO have been parties to a collective bargaining agreement covering the correctional officer unit (CBA 2003) for many years.

Initially, Council 94 was the collective bargaining representative of the professional unit. All Council 94 bargaining units were covered by a Master Contract (Master Agreement or Master Contract).² In 1992, after a consent election involving RIBCO, Council 94, the state, the DOC, and the Department of Children, Youth and Families, the Rhode Island State Labor Relations Board certified RIBCO as the collective bargaining agent for the professional unit.

Rather than draft a new contract, the state and RIBCO entered into a memorandum of agreement (MOA) covering the period from July 1995 through June 1999. The MOA provided that the terms of the Master Agreement would serve as the collective bargaining agreement for the professional unit (CBA 3506), except when the parties agreed to modify it.

In May and again in October 1998, the state posted a vacancy notice for an adult counselor to provide counseling services to adult inmates of state correctional facilities. The October vacancy notice indicated that there was "no [c]ivil [s]ervice [l]ist for this position" and that "collective bargaining union agreement: RIBCO ([CBA] 3506)" covered this position.

When he applied to fill this vacancy, the grievant, Michael Bouchard (Bouchard or grievant), was a state-employed correctional officer and a member of RIBCO's unit 2003. Instead of the grievant, the state hired an applicant who was not a member of a bargaining unit represented by RIBCO (nonunion applicant). On November 30, 1998, RIBCO filed a grievance contending that, pursuant to CBA 3506, the grievant, although a member of a separate and distinct bargaining unit, should have been awarded the position over the nonunion applicant.³ On September 16, 1999, the state's human resources coordinator denied the grievance because Bouchard was not a member of unit 3506 and "not entitled to the position[ ] in any case." At the next step in the grievance process, a state hearing officer denied the grievance for the same reasons.⁴ When the dispute proceeded to arbitration, the parties stipulated to a bifurcated arbitration hearing in which the issue of the arbitrability of the grievance would be decided first.

Article 11.4d of the Master Agreement provides that "[w]here no list exists for certification, all * * * vacant positions shall be filled from within the bargaining unit wherein the * * * vacant position exists * * *, or if there are less than three eligible employees therein, then from the top three state seniority employees from within any other bargaining units covered by the Master Agreement." (Emphasis added.) Pursuant to Article 11.4f, only "[i]f no bids are submitted from any member of a bargaining unit represented by Council 94, then the [s]tate has the right to fill [that position] from outside the bargaining units covered by this Master Agreement."

The arbitrator considered the testimony of the state's labor relations administrator, John Turano (Turano), with respect to the relationship between the MOA and the Master Agreement. According to Turano, the MOA did not modify the Master Agreement "`to read RIBCO' instead of Council 94," but that "`all references [to] Council 94 should read RIBCO.'"⁵

After considering the arguments of both parties, the arbitrator concluded that the grievance was arbitrable "because it alleges a violation of the collective bargaining agreement between the State of Rhode Island and RIBCO — the collective bargaining agreement which covers the RIBCO [p]rofessional [u]nit which includes [a]dult [c]ounselors." The arbitrator found that the state and RIBCO adopted the Master Agreement as the collective bargaining agreement governing the terms of employment for employees within the professional unit. He further found that all unions represented by RIBCO succeeded to the contractual rights granted to bargaining units represented by Council 94 under the Master Agreement, including the right to fill vacancies from within bargaining units represented by RIBCO. The arbitrator concluded that, although the grievant cannot reside in two different bargaining units, the Master Agreement, pursuant to the MOA, provides the grievant with cross-bargaining unit benefits.

The arbitrator based his finding of arbitrability on an inaccurate quotation of the language of Article 11.4d of the Master Agreement. Although he initially quoted this article correctly in his award, he misquoted the language of Article 11.4d at a crucial point in his analysis and used it to support his finding that the misquoted provision "grant[s] certain vacancy-filling rights to `any member of a bargaining unit represented by Council 94,' the same vacancy-filling rights now apply to any member of any bargaining unit represented by RIBCO."⁶ (Emphasis added.) Thus, by substituting "Council 94" for the term "Master Agreement" and relying upon Turano's testimony that "all references [to] Council 94 should read RIBCO," the arbitrator, by a stroke of the pen, expanded the contractual rights of a bargaining unit wholly unrelated to the Master Agreement and the MOA. We deem this misquotation deliberate and fatal.

On September 11, 2001, the state filed a petition in Superior Court to vacate the arbitrator's award pursuant to G.L.1956 § 28-9-18, and on September 28, 2001, RIBCO filed a petition to confirm the award. On March 28, 2003, the grievant resigned from his position as a correctional officer. On May 22, 2003, the Superior Court confirmed the arbitration award, and the state timely appealed.

Issues Presented

On appeal, the state contends that the arbitrator's finding of arbitrability is irrational, and that the arbitrator exceeded his powers by implementing an award that does not draw its essence from the collective bargaining contract. The state argues that the Superior Court erred in confirming the arbitrator's award because the arbitrator based his award on a contract that is inapplicable to this grievant and misquoted the language of the Master Agreement. Finally, the state suggests that the grievance may have been rendered moot because the grievant left his employment with the state and is now employed as a police officer for the Town of Burrillville. RIBCO argues that this appeal is neither ripe nor moot, and that the arbitrator properly exercised his jurisdiction under CBA 3506.

Ripeness

Before this Court, RIBCO contends that, by not securing a judgment pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure, this appeal is premature and the case should be remanded for entry of final judgment. The arbitrator has not issued an award on the merits of the controversy, but, pursuant to a stipulation by the parties, only issued an award declaring the grievance arbitrable.

Chapter 9 of title 28 permits a party to a labor arbitration to petition the Superior Court to confirm and/or vacate an arbitrator's award and mandates that the court issue an order either confirming or vacating the award. In contrast, § 28-9-22 directs that a judgment "may be entered in conformity with the order," which signals that a judgment is not mandatory. (Emphasis added.) Pursuant to § 28-9-25, "[a]n appeal may be taken from an order made in a proceeding under this chapter, or from a judgment entered upon an award." We are satisfied that the order of the Superior Court confirming the arbitration award declaring this dispute arbitrable is reviewable on appeal.

An arbitration award may be subject to judicial review on the issue of arbitrability, particularly when, as here, the parties agreed to a bifurcated proceeding. For example, in Providence Teachers Union, we vacated an arbitrator's award on the sole issue of arbitrability before the arbitrator reached the substantive merits of the grievance. Providence Teachers Union v. Providence School Board, 725 A.2d 282, 283 (R.I.1999). The issue of arbitrability is "`the equivalent of subject matter jurisdiction.'" Id. As long as an award has been made, this Court may review it solely on the determination of arbitrability in a bifurcated proceeding, even if the substantive issues surrounding the arbitration have not been decided. To hold otherwise would render a bifurcated hearing in this context a meaningless exercise.

Mootness

The issue of mootness is a closer question. "[A] case is moot if the original complaint raised a justiciable controversy, but events occurring after the filing have deprived the litigant of a continuing stake in the controversy." Associated Builders & Contractors of Rhode Island, Inc. v. City of Providence, 754 A.2d...