May 10, 2017



                                                               Supreme Court

                                                               No. 2016-92-Appeal.
                                                               (PM 15-1845)
               Town of Johnston              :

                      v.                     :

 Rhode Island Council 94, AFSCME, Local :
1491, by and through its President, Louis M. :
                  Prata.                     :




            NOTICE: This opinion is subject to formal revision before
            publication in the Rhode Island Reporter. Readers are requested to
            notify the Opinion Analyst, Supreme Court of Rhode Island, 250
            Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
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                                                                     Supreme Court

                                                                     No. 2016-92-Appeal.
                                                                     (PM 15-1845)
                Town of Johnston                  :

                        v.                        :

     Rhode Island Council 94, AFSCME, Local :
    1491, by and through its President, Louis M. :
                      Prata.                     :

               Present: Suttell, C.J., Goldberg, Robinson, Flaherty, and Indeglia, JJ.

                                          OPINION

         Chief Justice Suttell, for the Court. The Town of Johnston (the town), appeals from a

Superior Court judgment denying both its motion to stay implementation of an arbitration award

and its motion to vacate said award, and granting the Council 94, AFSCME, Local 1491’s (the

union) motion to confirm the arbitration award. This dispute arose after the Johnston Board of

Canvassers (the board) unanimously voted to eliminate a clerical position held by Colleen

Crowley. The union thereafter filed grievances with the town on Crowley’s behalf as required

under the terms of the then-operative collective-bargaining agreement (CBA) seeking to invoke

Crowley’s alleged “bumping rights.” 1 After the town denied the union’s claims, the union filed

a demand for arbitration. The appointed arbitrator found in the union’s favor, and the Superior

Court confirmed the arbitration award. The sole issue on appeal is whether the Superior Court

erred in confirming the arbitrator’s finding that Crowley’s dispute with the town was arbitrable.



1
  Articles 10.8 and 10.6 of the applicable collective-bargaining agreement (CBA) would have
allowed Crowley to continue her employment with the town by replacing a less senior employee.
Specifically, § 10.8 provides that “[e]mployees whose jobs are abolished or eliminated shall be
permitted to exercise their secondary seniority in accordance with Section 10.6 of this article.”
Section 10.6 discusses in further detail the proper manner of layoffs based on an employee’s
level of seniority.


                                                -1-
       This case came before the Supreme Court pursuant to an order directing the parties to

appear and show cause why the issues raised in this appeal should not be summarily decided.

After considering the parties’ written and oral submissions and reviewing the record, we

conclude that cause has not been shown and that this case may be decided without further

briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.

                                                 I

                                 Facts and Procedural History

       The pertinent facts in this case are not in dispute. On July 18, 2005, Crowley was

appointed to a “Clerk I” position with the board. During Crowley’s term of employment, “the

parties followed the terms and conditions of the [CBA] then in effect * * * including for salary

and benefits, which was uniform with all other [t]own employees working in the position of

Clerk.” Crowley paid union dues while she worked for the board, and she was listed on the

town’s seniority list along with her date of hire. 2 In 2010, Crowley moved to the classification

and pay scale of “Clerk II.”

       In 2014, after she had been employed by the board for approximately nine years, the

board unanimously voted to eliminate Crowley’s position and, as a result, her employment was

terminated. At a public hearing on June 11, where her clerical position was considered and

ultimately eliminated, the board expressed that a decrease in funding was the basis for its

decision to eliminate the least senior full-time position. Specifically, the minutes of this meeting

included the board’s explanation that “the [c]ouncil [had] recently adopted its budget ordinance

and the ordinance reduced the funding to the [b]oard * * *.”

2
 It was further stipulated that three other employees (both present and former) holding clerical
positions with the board also paid union dues and were listed on the town’s seniority list.


                                               -2-
       The next day, the union wrote to the town seeking to assert Crowley’s “bumping rights”

pursuant to Articles 10.8 and 10.6 of the CBA. In response, the town indicated to the union, in a

letter dated June 19, 2014, that it did not consider Crowley to be a town employee covered by the

CBA. Specifically, the town noted that, unlike the other employees with “bumping rights” who

had been appointed by the mayor or town council, Crowley “was hired under the statutory

authority of the [board] and not the [t]own [a]dministration.”        The union thereafter filed

grievances in June and July 2014, all of which were denied at their respective stages. On or

about August 14, 2014, the union filed a demand for arbitration.

       An arbitration hearing was held on January 21, 2015, and the arbitrator agreed to

bifurcate the arbitrability issue from the merits of Crowley’s claim. The town maintained that

Crowley’s grievance was not arbitrable because, having been appointed by the board, Crowley

was not a member of the bargaining unit covered by the CBA. The union’s position, with which

the arbitrator ultimately agreed, was that Crowley was a member of the bargaining unit and

entitled to all privileges of membership. The arbitrator, after citing to applicable law and

reviewing the record and arguments presented by both sides, found that “[t]he [t]own [had]

treated [b]oard employees as members of the bargaining unit since at least 1999[.]” He also

noted that the town’s denial of Crowley’s bumping rights on the basis that she may not have

been hired off the “civil service list” as required for such positions, “[did] not remove [Crowley]

from the bargaining unit nor [did] it remove this grievance from arbitration, under the

circumstances of this case.” The arbitrator found that Crowley was a “classified employee” of

the town and concluded that the matter was therefore substantively arbitrable.

       The town filed a miscellaneous petition in Superior Court seeking to vacate the

arbitration award and to stay its implementation. The union filed an answer to the petition and a




                                               -3-
motion to confirm the award, to which the town objected. After a hearing on the matter, the

Superior Court issued a written decision confirming the award. In his decision, the hearing

justice concluded that “the current dispute [was] arbitrable because * * * Crowley [was] a

municipal employee in the [t]own * * * and therefore, an employee that falls under the

provisions of the CBA.”       The hearing justice ruled that the arbitrator’s decision met the

necessary standard—i.e., it “[drew] its essence from the contract and [was] based upon a

passably plausible interpretation of the contract.”

       Final judgment entered in favor of the union and the town subsequently filed a timely

notice of appeal.

                                                 II

                                       Standard of Review

       “The issue of whether a dispute is arbitrable is a question of law that this Court reviews

de novo.” AVCORR Management, LLC v. Central Falls Detention Facility Corp., 41 A.3d 1007,

1010 (R.I. 2012) (quoting State Department of Corrections v. Rhode Island Brotherhood of

Correctional Officers, 866 A.2d 1241, 1247 (R.I. 2005)). “When so reviewing, we bear in mind

that ‘[a]rbitration is a matter of contract and a party cannot be required to submit to arbitration

any dispute which [it] has not agreed so to submit.’” Id. (quoting Radiation Oncology

Associates, Inc. v. Roger Williams Hospital, 899 A.2d 511, 514 (R.I. 2006)). “Because it is a

matter of contract, ‘[g]eneral rules of contract construction apply’ and the determination of

‘whether the parties agreed to submit a particular dispute to arbitration turns upon the parties’

intent when they entered into the contract from which the dispute ultimately arose.’” Id. (quoting

Radiation Oncology Associates, Inc., 899 A.2d at 514).




                                                -4-
                                                 III

                                             Discussion

       On appeal, the town argues that the arbitrator “did not act within his power and authority,

and thus his award should have been vacated by the Superior Court.” Specifically, the town

claims that the Superior Court decision confirming the arbitration award was erroneous because

“(1) the arbitrator * * * failed to recognize that this [case] is a matter of statutory interpretation

and thus not arbitrable; (2) the CBA cannot supersede a state statutue”; and (3) “the [Superior]

Court should have determined that the arbitrator’s interpretation [of the contract] in this instance

was not passibly [sic] plausible.”

       This Court “has no authority to vacate the arbitrator’s award absent a manifest disregard

of a contractual provision, a completely irrational result, a decision that is contrary to public

policy, or an award that determined a matter that was not arbitrable in the first place.” City of

Cranston v. International Brotherhood of Police Officers, Local 301, 115 A.3d 971, 976 (R.I.

2015) (quoting State Department of Corrections v. Rhode Island Brotherhood of Correctional

Officers, 64 A.3d 734, 739 (R.I. 2013)). An arbitrator exceeds his or her powers by arbitrating a

dispute that is not arbitrable. Id. at 977. This “heightened level of review in [arbitrability] cases

is predicated on the possibility that an arbitrator might be called upon to consider and to interpret

a CBA in such a way that it would alter existing statutory policies or override other supervening

state law governing the public-employment sector.” Id. (quoting Rhode Island Brotherhood of

Correctional Officers v. State Department of Corrections, 707 A.2d 1229, 1234 (R.I. 1998)).

       In the matter before us, the applicable CBA outlined the necessary steps the union must

undertake to file a grievance on an employee’s behalf. Only when the grievance is not settled

after these steps are taken does the union have the right to have the matter arbitrated. Here, it is




                                                -5-
undisputed that the union followed all of the proper steps outlined in the CBA before filing its

demand for arbitration.     Because the procedures undertaken by the union with respect to

Crowley’s grievance are not disputed and because Article 27, § 27.5 of the CBA clearly

articulates that members of the bargaining unit have the right to have their grievances arbitrated, 3

the determination of whether this matter is arbitrable, therefore, turns on whether Crowley’s

“Clerk” position is in fact governed by the CBA.

       Pursuant to Article 1, § 1.2 of the CBA, “[t]he bargaining unit for the purpose of [the

CBA] * * * consist[s] of the [t]own * * * [e]mployees pursuant to [G.L. 1956 chapter 9.4 of title

28].” “Municipal employee” is defined as “any employee of a municipal employer, whether or

not in the classified service of the municipal employer.” Section 28-9.4-2(b). 4 The town’s code

(the code) defines classified personnel as “[a]ll persons engaged, appointed or employed in the

service of the [t]own * * *.” 5 Johnston Town Code, Ch. 47, Art. I, § 47-1. General Laws 1956

§ 17-8-5 provides that each local canvassing board “shall have and exercise the functions,

powers, and duties provided for local boards by this title or by any law not inconsistent with this

title.” The statute lists several functions to be carried out by the board, including appointing and

employing clerical and technical assistants. Section 17-8-5(a)(1)-(4).

       Although Crowley was appointed by the board pursuant to § 17-8-5(a), there is nothing to

suggest that she was not employed by the town and part of the bargaining unit. It is undisputed

that Crowley’s union dues were deducted from her payroll check and that she was listed on the

3
  Article 27, § 27.5 of the CBA provides, in relevant part, that “[a]ny grievance * * * that has
been properly and timely processed through all of the grievance procedures * * * and that has not
been settled at the conclusion thereof, may be submitted to arbitration by the [u]nion * * *.”
4
  There are several exclusions to the definition of “municipal employee,” none of which are
applicable here. See G.L. 1956 § 28-9.4-2(b)(1)-(7).
5
  Article XVI, § 16-4 of the Johnston Town Charter sets forth a list of “[p]ositions excepted from
classified service,” and the town does not cite any evidence that Crowley fits within any of the
exceptions listed.


                                                -6-
town’s seniority list along with her date of hire. Moreover, “Appendix B” to the CBA, which

provides the wage rates in effect, specifically lists the “Clerk I,” “Clerk II,” and “Clerk III”

positions. Furthermore, the CBA, by reference to § 28-9.4-2(b), defines “[m]unicipal employee”

as “any employee of a municipal employer, whether or not in the classified service of the

municipal employer.” (Emphasis added.) There is no language excluding employees who were

appointed by the board, and this Court declines to read such exclusion into the statute. To the

contrary, the code’s definition of classified personnel specifically includes persons “appointed or

employed in the service of the [t]own.” Johnston Town Code, Ch. 47, Art. I, § 47-1 (emphasis

added). Thus, according to the CBA, by reference to § 28-9.4-2(b), Crowley is an employee of

the town and a member of the bargaining unit under the agreement.

       The town’s argument that Crowley is not a classified employee because she was

appointed by the board is misplaced. As discussed herein, the code’s definition of classified

personnel specifically includes persons “appointed or employed in the service of the [t]own.”

Johnston Town Code, Ch. 47, Art. I, § 47-1 (emphasis added). Moreover, the town’s assertion

that the arbitrator’s decision is in conflict with state law because, according to § 17-8-5(a)(4),

only the board has the authority to appoint its clerical assistants, is also unavailing. As noted, the

statute contains no language preventing the board’s clerical assistants from belonging to a

municipal employees’ union or from assuming other positions in the town in accordance with a

union member’s rights under the CBA. It is our opinion that there is no conflict between § 17-8-

5(a)(4), § 28-9.4-2(b), and the CBA. To allow the union to arbitrate Crowley’s grievance does

not infringe upon the authority of the board to appoint clerical employees. 6



6
  Notably, Crowley is not asking to be bumped into a clerical position with the board, but wishes
to exercise her rights under the CBA to find another job with the town after having held a
position with the board.


                                                -7-
       In applying the plain language of the relevant statutes and sections of the CBA, we are

left with one conclusion—Crowley’s claim was arbitrable, as she clearly was a member of the

bargaining unit. Accordingly, this Court affirms the hearing justice’s decision finding that the

issue presented to the arbitrator was arbitrable.

                                                    IV

                                            Conclusion

       For the reasons stated herein, we affirm the judgment of the Superior Court. The record

shall be returned thereto.




                                                -8-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     Town of Johnston v. Rhode Island Council 94,
Title of Case                        AFSCME, Local 1491, by and through its President,
                                     Louis M. Prata.
                                     No. 2016-92-Appeal.
Case Number
                                     (PM 15-1845)
Date Opinion Filed                   May 10, 2017
                                     Suttell, C.J., Goldberg, Robinson, Flaherty, and
Justices
                                     Indeglia, JJ.
Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Jeffrey A. Lanphear
                                     For Plaintiff:

                                     William J. Conley, Jr., Esq.
                                     Gina Lemay, Esq.
Attorney(s) on Appeal
                                     For Defendant:

                                     Carly Beauvais Iafrate, Esq.
                                     Gerard P. Cobleigh, Esq.




SU-CMS-02A (revised June 2016)
