In re Arbitration Between Davies and Career and Technical High School Teachers' Association

IN THE MATTER OF THE ARBITRATION BETWEEN WILLIAM M. DAVIES, JR. CAREER AND TECHNICAL HIGH SCHOOL TEACHERS' ASSOCIATION/NEARI/NEA v. WILLIAM M. DAVIES, JR. CAREER AND TECHNICAL HIGH SCHOOL BOARD OF TRUSTEES

No. PM-2017-4562

Superior Court of Rhode Island, Providence

October 11, 2018

For Plaintiff: Vincent F. Ragosta, Jr., Esq.; Peter D. DeSimone Esq.

For Defendant: John E. DeCubellis, Jr., Esq.

DECISION

CARNES, J.

Before this Court is the William M. Davies, Jr. Career and Technical High School Board of Trustees' (the Board) Motion to Vacate an Arbitration Award finding the Board violated the Collective Bargaining Agreement (CBA) between William M Davies, Jr. Career and Technical High School Teachers' Association/NEARI/NEA (the Union) and the Board. The Union has filed a Cross-Motion to Confirm the Arbitration Award. The Board contends that the award should be vacated because the arbitrator exceeded his authority by interpreting the CBA in such a way as to contradict state law and usurp the Board's statutory authority. Jurisdiction is pursuant to G.L. 1956 §§ 28-9-14, 28-9-17 and 28-9-18.

I Facts and Travel

The material facts of this case are not in dispute. At the time of the Board's action that gave rise to the current dispute, the Board and the Union were parties to a collective bargaining agreement. Arbitration Award 4-5. The arbitrator's interpretation of two provisions of the CBA is at issue in this case. Article 5.1 provides: "To the extent permissible by law, parties hereto recognize and accept the principle of seniority in all cases of layoffs and recalls." CBA 7 (emphasis added). Article 5.7 provides:

"All internal applicants for a position at Davies will be judged on the bases of the following criteria as described in the Vacancy/Transfer Matrix:

- Seniority

- Elements/Components of the RI Model Evaluation and Support System

- Certifications

- Content Knowledge

- Relevant Professional Experience" Id. at 8.

At the end of the 2015-2016 school year, the Board laid off William Esser (Esser), who was then teaching at William M. Davies Jr. Career and Technical High School (Davies) in the Building and Construction Trades Department. The Board also laid off Emmanuel Ruiz (Ruiz), who was then teaching in the Math Department.

At the beginning of the 2016-2017 school year, a teaching position in the Math Department became available, and both Esser and Ruiz were interested in the position. Both Esser and Ruiz were certified to teach Math; however, Esser was more senior than Ruiz. To decide which teacher should receive the position, Adam Flynn (Flynn), the Supervisor of Academic Instruction at the time, applied the Vacancy/Transfer Matrix found in Article 5.7 of the CBA (the matrix). He did so because he believed Esser's move to a different department was not a "linear recall" and therefore, it was a transfer that fell more appropriately under Article 5.7 as opposed to Article 5.1 that specifically addressed recalls. After applying the matrix, both Esser and Ruiz received the same score. Flynn then looked at both teachers' Effectiveness Rating Report and found that while both teachers were rated overall "Effective," Ruiz had a slightly higher technical score. Based on this slight difference in score, Flynn recalled Ruiz for the open position as opposed to Esser.

The Union then filed a grievance, asserting the Board violated Article 5.1 of the CBA, the seniority provision, by failing to recall the more senior Esser over the less senior Ruiz. Arbitration Award 6-7. The grievance proceeded to arbitration where the issue presented was the following: "Was the failure to recall Mr. Esser to a Math position a violation of the collective bargaining agreement? If so, what shall be the remedy"? Arbitration Award 1-2.

At arbitration, the Union contended that the issue was substantively arbitrable because the CBA included a broad arbitration clause and the grievance did not involve the Board's non-delegable statutory duties. Also, the Union asserted that there was no contractual basis for Flynn's conclusion that Esser's move to the Math Department would be a "linear recall" and therefore, Article 5.7, which governed vacancies and transfers, should have been applied as opposed to Article 5.1, which specifically governed recalls. Lastly, the Union pointed to the Board's past practice of basing lay-off and recall decisions on seniority to show that seniority should have been applied in this case as well.

The Board took the position that the phrase "to the extent permissible by law" contained in Article 5.1 of the CBA prevented it from recalling the more senior Esser over the less senior Ruiz. Specifically, the Board asserted that the Basic Education Program Regulations and advisory opinions issued by the Commissioner of Education prohibited it from making the recall decision based on strict seniority. Additionally, the Board averred that the issue was not arbitrable because the decision of who to recall to the vacant position was the Board's non-delegable statutory duty.

After reviewing each parties' positions, the arbitrator issued a decision (the award) finding the dispute was arbitrable, and ultimately, that the Board violated Article 5.1 of the CBA by failing to recall the more senior Esser to the vacant position. Arbitration Award 11-14. Specifically, the arbitrator found that the Board was not legally precluded from "us[ing] seniority as the determining factor for recalling laid-off teachers" and therefore, Article 5.1 required "the principle of seniority to govern all recalls." Id. at 12, 14. The arbitrator issued an award requiring the Board to offer to recall Esser to the position it gave to Ruiz and to compensate Esser for any lost wages and benefits. Id. at 14.

The Board filed a Motion to Vacate Arbitration Award arguing the arbitrator exceeded his authority by deciding a non-arbitrable issue that involves the Board's non-delegable duties. Board's Appl. and Mot. to Vacate an Arbitration Award. Additionally, the Board avers that the arbitrator manifestly disregarded the law by requiring the Board to apply strict seniority in making recall decisions. The Union responded by filing a Motion to Confirm Arbitration Award, asserting that the award should be confirmed because the dispute was arbitrable as it did not contravene state law. Union's Mot. to Confirm Arbitration Award. The Union also contended that the award was grounded in "passably plausible" interpretation of the CBA provisions and the law.^[1]

II Standard of Review

It is well settled that "Rhode Island has a strong public policy in favor of the finality of arbitration awards." Berkshire Wilton Partners, LLC v. Bilray Demolition Co., Inc., 91 A.3d 830, 834 (R.I. 2014). Accordingly, this Court only may vacate an arbitration award in limited circumstances pursuant to § 28-9-18 and established case law. ABC Bldg. Corp. v. Ropolo Family, LLC., 179 A.3d 701, 705-06 (R.I. 2018); see also Buttie v. Norfolk & Dedham Mut. Fire Ins. Co., 995 A.2d 546, 549 (R.I. 2010) (citing N. Providence Sch. Comm. v. N. Providence Fed'n of Teachers, Local 920, Am. Fed'n of Teachers, 945 A.2d 339, 344 (R.I. 2008)).

A court can vacate an arbitration award if (1) the award was the result of fraud, (2) the arbitrator exceeded his or her powers, or "so imperfectly executed them, that a mutual, final, and definite award upon the subject matter submitted was not made," or (3) there was "no valid submission or contract, and the objection [was] raised" under specified conditions. Sec. 28-9-18(a). An arbitrator can exceed his or her powers by reaching an "'irrational result, '" displaying a "'manifest disregard of [the law or] a contract provision, '" or deciding an issue "'that was not arbitrable in the first place.'" State Dep't of Corr. v. R.I. Bhd. of Corr. Officers, 64 A.3d 734, 739 (R.I. 2013) (quoting Cumberland Teachers Ass'n v. Cumberland Sch. Comm., 45 A.3d 1188, 1191 (R.I. 2012)).

Arbitrability, unlike the merits of the arbitration award, is a question of law that this Court reviews de novo. Town of Cumberland v. Cumberland Town Emps. Union, 183 A.3d 1114, 1118 (R.I. 2018); State Dep't of Corr., 64 A.3d at 740; see also State Dep't of Admin. v. Rhode Island Council 94, A.F.S.C.M.E., AFL-CIO, Local 2409, 925 A.2d 939, 944 (R.I. 2007). However, "if the arbitrator decides an arbitrable grievance and there is no other basis upon which to vacate the award, it must be confirmed." Rhode Island Council 94, 925 A.2d at 944 (citing Sec. 28-9-17).

III Analysis

A Arbitrability

Before this Court can address the merits of the award, it first must decide whether the dispute was substantively arbitrable. See State Dep't of Corr., 64 A.3d at 740. In other words, this Court must decide whether the arbitrator had the authority to resolve the dispute in the first instance. See id. at 739. Substantive arbitrability similar to subject matter jurisdiction, can be raised at any time. Aetna Bridge Co. v. State Dep't of Transp., 795 A.2d 517, 522-23 (R.I. 2002).

The Board contends that the arbitrator wrongfully decided a non-arbitrable issue because requiring strict seniority in recall decisions contradicts certain statutory provisions the Basic Education Program Regulations (BEP)^[2], and previous advisory opinions from the Commissioner of Education. The Board also contends that the arbitrator usurped the Board's statutory duties in relation to its educational mission. In response, the Union asserts that nothing in the award or the CBA interferes with the Board's authority over educational policy, or usurps the Board's non-delegable duties.

It is well-established that "'an arbitrator cannot resolve a labor dispute by issuing a ruling that would conflict with or compromise the...