I. Public Employers' Duties and Obligations: Management Rights and
Responsibilities
Summary judgment holding that retirees were not obliged to contribute to cost of healthcare insurance where collective bargaining clause guaranteed retirees health care coverage until eligible for Medicare but was silent on whether retirees could be required to contribute must be reversed and remanded for factual determination of parties' intent.
Woonsocket
Teachers' Guild v. Woonsocket School Committee, 770 A.2d 834, (RI
2001)
A Woonsocket High School nurse objected to dispensing medication twice a week to a Northern Rhode Island Collaborative special education student because he was not a Woonsocket High student but was attending class in a leased classroom at the high school. Citing the duty of the school Department to provide health services to students of the collaborative program, which could not be bargained away, the Supreme Court held that the teacher's grievance was not arbitrable.
Vose vs. Rhode Island
Brotherhood of Correctional Officers, 587 A.2d 913, (RI 1991).
The Director of Corrections is authorized by law to "make and promulgate necessary rules and regulations incident to the exercise of his or her powers and the performance of his or her duties including but not limited to rules and regulations regarding nutrition, sanitation, safety, disciplined, recreation, religious services, communication, and visiting privileges, classification, education, training, employment, care, and custody for all persons committed to correctional facilities." Pursuant to this general mandate the director imposed mandatory overtime on correctional officers. Eight officers refused and were suspended for one day. The director sought and obtained a Supreme Court ruling that his directive was not subject to the grievance process or otherwise arbitrable under the collective bargaining agreement.
Pawtucket School Committee
v. Pawtucket Teachers' Alliance, 652 A.2d 970, 972 (RI 1995).
R.I. Gen. Laws § 16-2-9 (3) required the school committee to ensure that appropriate English as a Second Language services were provided to students. The English as a Second Language Director in Pawtucket required all ESL teachers to submit copies of their lesson plans for review, once a month. A teacher filed a grievance and sought arbitration. The Supreme Court held that the matter was not arbitrable.
An arbitration award striking down a cap on consecutive overtime work hours established by the director was vacated by the Supreme Court. The court held that non-delegable managerial duties of the department and its director to provide for safety and welfare of disabled, custodial patients and for the protection of the public's health, precluded allowing an arbitrator to even consider much less rule on the exercise of the director's prerogatives.
Warwick School Committee v. R.I. State Labor Relations Board, et al. (RI Superior Court, 2016).
Implementing electronic grade recording is a management right not required to be collectively bargained. Only if the new grading system, once established, has a material "effect on the terms and conditions of employment" may the union compel management to bargain over the imposition of electronic grading..
Note, however,
that where a school committee adopts a policy that addresses subjects
that are both within and without the proper scope of collective
bargaining, the committee is required to engage in collective bargaining
regarding the aspect of the policy concerned with wages, hours or
other conditions of professional employment. In this case, the school
committee, pursuant to state laws and regulations, unilaterally
promulgated an internet use policy that applied both to students
and staff. On element of the policy provided for discipline against
anyone, including teachers, who violated the policy. The teachers'
union objected to the implementation of the policy without negotiation
and filed an unfair labor practice charge with the State Labor Relations
Board, which ruled against the school committee. The committee appealed
and the Superior Court affirmed the decision of the Labor Relations
Board.
School
Committee of the Town of North Kingstown v. National Education Association
of North Kingstown and Robert Sullivan
(RI Superior Court, 2003)
The Rhode Island Superior Court, (Gale, J.), decided that where the school committee, pursuant to a legislative and regulatory directive, created a special "advisory period" as part of an educational program designed to increase literacy and reduce the dropout rate of high school students, an arbitrator's decision excusing the teachers union's president from assignment to an "advisory period" was irrational and should be overturned.
The collective bargaining agreement contained a provision excluding the union's president from "non-teaching" assignments. The president grieved his assignment to an "advisory period" alleging that it was a non-teaching function.
The court overturned an arbitration award in the grievant's favor holding that the arbitrator's decision to failed to "draw its essence" from the collective bargaining agreement, was not based upon a "passibly plausible interpretation" of the agreement, and therefore constituted an "irrational result." The court added that adopting the arbitrator's award would be to totally disregard the statutory and regulatory purpose of the "advisory period.
Anderson
v. Town of Smithfield
(RI Superior Court, 2005)
Where retirees continue to receive substantially the same health coverage they bargained for at the time of their retirement the employer may alter the health plan for sound economic reasons and need not negotiate the change with the retirees.
Central
Falls School District Board of Trustees and Frances Gallo, in her
capacity as Superintendent of Schools, Central Falls School District
v. Central Falls Teacher Union
(RI Superior Court, 2008)
A school district's decision to promote a teacher to the position of English department chair, based on a finding that he was the better qualified candidate, is a non-delegable managerial right and responsibility of the superintendent and school district and may not be the subject of arbitration.
Rhode Island General
Law § 28-7-49 No limitation on health care benefit providers.
No collective bargaining agreement covering any group or groups of state employees, public school teachers or employees of any city or town, ratified after August 1, 2008, shall specify that an employer must procure a health care benefit plan from a specific provider of such plans. The technical qualifications of the health care benefit plan, to be contracted for, shall not be framed or constructed in a manner designed to identify an exclusive provider of said health care services.
Exeter-West
Greenwich Regional School District School Committee v. Exeter-West
Greenwich School District Teachers' Association
(RI Superior Court 2008)
Exeter-West Greenwich, The School Committee’s decision to combine the Art and Music Departments falls within the District’s non-delegable statutory duties and is, therefore, non-arbitrable. Judge Bennett R. Gallo, Superior Court
North
Providence School Committee v. The North Providence Federation of
Teachers, Local 920, American Federation of Teachers (RI Supreme
Court 2008)
A decision to eliminate the English teachers’ planning or composition period for financial reasons was subject to collective bargaining. However, “If the school committee had justified the elimination of the composition period on the primary basis that said elimination was undertaken for the purpose of improving the education of North Providence High School students in English and if the school committee had explained its thinking in that regard in a cogent manner, it is entirely possible that we would have considered that administrative decision to be non-arbitrable.” Rhode Island Supreme Court.
East
Providence School Department v. East Providence Education Association
(Superior Court 2010)
East Providence School Committee was legally permitted to make unilateral changes in teachers’ working conditions and salaries following expiration of collective bargaining agreement where the changes were necessary to meet the School Committee’s obligation to operate with a balanced budget. Judge Michael A. Silverstein.
Warwick School Dept., et al. v. Rhode Island State Labor Relations Board, (RI Superior Court 2017)
Where two grievances arose out of conditions that occurred after the expiration of a collective bargaining agreement, the school department had no obligation to submit the grievances to binding arbitration pursuant to a grievance arbitration clause in the expired contract and consequently the decision of the state Labor Relations Board that the School Department’s refusal to arbitrate the grievances was an “unfair labor practice” was reversed.
Rhode Island American Federation of Teachers/Retired Local 8037 v. Johnston School Committee, et al. C.A. No. PC 2015-3044 (RI Superior Court 2017)
RI Gen. Laws § 16-16-42, "Life insurance benefits," requires school committees to allow any retiring employee to maintain the same level of life insurance they may have had immediately prior to their retirement so long as the retiree pays the same cost of the insurance that was in effect immediately prior to their retirement.
North Kingstown v. Ken Wagner et al. (RI Supreme Court 2018)
Rhode Island Supreme Court Decision, Viner v. N. Kingstown School Dept. where attorneys conducted investigation into teachers' alleged misconduct and their report, containing, inter alia, summaries of witness statements arguably formed the basis for School Committee's decision to terminate teacher, no blanket attorney-client privilege exists and any claim of privilege must be asserted and evaluated, in a hearing or deposition, on a question by question basis.
This basic principal
of employment law has long been ignored by school committees, as
well as other municipal employers, but recent Supreme Court decisions
have made it clear that traditional practice and agreement between
union and management is no justification for ignoring the law.
Rhode
Island Laborers’ District Council et al. v. City of Providence et
al.
796 A. 2d 443, (RI 2002)
In this case
where the Supreme Court overturned an arbitrator's decision, it
held that " . . .both managerial and supervisory positions
are excluded from the collective bargaining process and . . . this
is not a proper subject for negotiation by the parties. Macera v.
Cerra, 789 A.2d 890, 895 (R.I. 2002); (citing State v. Local No.
2883, A.F.S.C.M.E., 463 A.2d 186, 191 (R.I. 1983)). We have adopted
the federal definition of supervisory employee that includes any
individual with the responsibility to direct or discipline other
employees and whose authority "is not of a merely routine or
clerical nature, but requires the use of independent judgment."
Local No. 2883, A.F.S.C.M.E., 463 A.2d at 189-90 n. 4 (quoting 29
U.S.C.A. § 152(11)). The parties are not free to negotiate,
under the guise of contract negotiations or a grievance resolution,
the inclusion of management and supervisory employees in the bargaining
unit.
Bd.
of Trustees v. RI State Labor Rel. Bd., 694 A.2d 1185 (RI 1997)
The Rhode Island Supreme court has adopted the federal standard for determining who is a supervisor. The criteria are disjunctive so if an employee meets any one of them she or he is legally excluded from collective bargaining. A supervisor is defined as:
. . .any individual
having authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recommend such action,
if in connection with the foregoing the exercise of such authority
is not of a merely routine or clerical nature, but requires the
use of independent judgment (quoting 29 United States Code §152(11)
III. Past
Practices May Be Enforced Only Under Certain Narrow Circumstances
Rhode
Island Court Reporters Alliance vs. State of Rhode Island, 591 A.2d
376, (RI 1991).
Plaintiffs sought continuation of parking benefits and claimed that past practice mandated same. Plaintiffs filed a grievance and obtained a favorable decision from an arbitrator. The Superior Court and then the Supreme Court reversed the arbitrator. The court ruled that at the very least a collective-bargaining agreement must contain a "past practices" provision and specific references to those practices intended to be followed. The Rhode Island General Assembly has since codified the standards at R.I. Gen Laws § 28-9-27. The law reads:
(a) An arbitrator shall have the authority to consider the existence of a past practice that may exist between the parties to a collective bargaining agreement only under the following circumstances:
(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.
(b) A party claiming the existence of a past practice shall be required to prove by clear and convincing evidence that the practice;
(1) is unequivocal;
(2) has been clearly enunciated and acted upon;
(3) is readily ascertainable;
(4) has been in existence for a substantial period of time;
(5) has been accepted by representatives of the parties who possess the actual authority to accept the practice.
(c) A past practice that may exist between the parties to a collective bargaining agreement may not override any contrary provision of an existing collective bargaining agreement, statute or ordinance.
(d) A past practice that may exist between the parties to a collective bargaining agreement may not override any contrary provision of any written rule, regulation, or policy that has been promulgated, adopted, and published pursuant to either the Administrative Procedures Act or promulgated and published by the appropriate governing entity in a city or town.
(e) Any party to a collective bargaining agreement may provide written notice to the other party that it no longer intends to be bound by a past practice unless 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. This notification must describe the past practice and set forth the effective date of the termination of the practice. Neither party is obligated to follow the practice thirty (30) days following this notification.
City of Newport
v. Allen Lama et al., 797 A.2d 470 (RI 2002)
The Supreme Court held that the city of Newport was free to amend an ordinance reducing the level of payment to workers injured on the job from 100% to 66 2/3 percent where a collective-bargaining agreement with its workers stated that "leave and medical expenses for injury in the line of duty shall be granted as provided for in the. . .City Code Ordinances."
At the time
the collective bargaining agreement was entered into, the "leave
and medical expenses for injury in the line of duty" equaled
100 percent of an employee's salary. The arbitrator and the Superior
Court, to which the City of Newport initially appealed, ruled because
the union had initially negotiated the terms of the occupational
injury provision, the city could not apply the amended ordinance
to the collective bargaining agreement absent further negotiation.
The Supreme Court reversed, holding that in the absence of a specific
contractual obligation to provide 100 percent of an employee's salary
an arbitrator had no authority to cite a past practice to contravene
the city's legislative function and its inherent power to amend
its ordinances.
Lincoln
Teachers Association Local Union 1461, AFT, AFL-CIO v. Lincoln School
Committee, (RI Superior Court 2002)
The Rhode Island Superior Court overturned an arbitrator's decision sustaining a grievance brought by two teachers who had unsuccessfully sought one year unpaid leaves of absences. The contract provided this benefit but subject to the discretion of the Superintendent. The arbitrator ruled that it had been the past practice of the parties to permit such leaves notwithstanding that the current Superintendent and school committee had not granted such leaves. Since the committee and superintendent had not notified the union of their intent to abandon this past practice it was valid. The court reversed citing the past practice statute.