                                                                  Supreme Court
                                                                  No. 2013-66-Appeal.
                                                                  No. 2013-44-Appeal.
                                                                  (WC-12-542)


           Town of North Kingstown                :

                        v.                        :

    International Association of Firefighters,    :
          Local 1651, AFL-CIO et al.



                                                 ORDER

          This litigation stems from a labor dispute between the Town of North Kingstown (the

town) and the North Kingstown Firefighters, Local 1651, International Association of

Firefighters, AFL-CIO (the union). After neither party timely requested interest arbitration for

the 2011-2012 contract year, the town unilaterally implemented an ordinance which significantly

changed the firefighters’ wages, hours, and terms and conditions of employment.

          On December 14, 2012, a hearing justice of the Superior Court issued a lengthy decision,

in which he granted the town’s motion to stay interest arbitration with the union for the 2011-

2012 contract year, issued related declaratory relief, and also issued an unrequested mandatory

injunction, which directed the town to “‘unring the bell’ * * * as to wages, hours, and other terms

and conditions of employment [and to] go back to the state that existed pre-unilateral

implementation.” An order to that effect entered on February 5, 2013. Thereafter, at the town’s

request, the hearing justice entered final judgment, pursuant to Rule 54(b) of the Superior Court

Rules of Civil Procedure. 1



1
  Because there were other outstanding claims not yet addressed in the hearing justice’s decision,
the town requested that final judgment enter with respect to the relief issued in the hearing


                                                 -1-
       As part of its appeal, the town first moved for a stay in the lower court on February 6,

2013, which was denied by the hearing justice in a bench decision that same day. In accordance

with Article I, Rule 8 of the Supreme Court Rules of Appellate Procedure, 2 the case then came

before this Court, as a duty matter, in which the town moved for a stay of the hearing justice’s

order and the subsequent Rule 54(b) judgment, pending an appeal. On February 7, 2013, the

duty justice issued an order temporarily granting the stay pending further consideration thereof

by the full Court at its conference scheduled for February 14, 2013. The issuance of that stay

was also conditioned on the parties’ agreement to continue discussions concerning their labor

dispute.

       Following that conference, on February 18, 2013, we issued an order, again temporarily

continuing the stay and directing the parties to submit the above-referenced Rule 54(b) judgment

to the Court because it had not accompanied the town’s motion to stay. That order further

directed the parties to continue with their negotiations until consideration by the full Court at our

conference scheduled for March 21, 2013.

       In the interim, the parties entered into appellate mediation, which ultimately proved

unsuccessful. Following our conference on March 21, 2013, we then issued an order assigning

the motion for a stay to our oral argument calendar for April 30, 2013.




justice’s decision, pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure. Rule
54(b) provides that “[w]hen more than one claim for relief is presented in an action, * * * the
court may direct the entry of a final judgment as to one or more but fewer than all of the claims *
* * only upon an express determination that there is no just reason for delay and upon an express
direction for the entry of judgment.”
2
  In pertinent part, Article I, Rule 8 of the Supreme Court Rules of Appellate Procedure permits
an aggrieved party to move for “a stay of enforcement pending appeal, or for an order
suspending, modifying, restoring or granting an injunction during the pendency of an appeal,”
provided that the moving party first requests a stay from the trial court.



                                              -2-
        In Narragansett Electric Co. v. Harsch, 367 A.2d 195, 197 (R.I. 1976), we held that this

Court will not issue a stay unless the moving party “makes a ‘strong showing’ that (1) it will

prevail on the merits of its appeal; (2) it will suffer irreparable harm if the stay is not granted; (3)

no substantial harm will come to other interested parties; and (4) a stay will not harm the public

interest.” This Court’s rule governing motions to stay is modeled after Rule 8 of the Federal

Rules of Appellate Procedure. As such, this Court looks to federal cases for guidance with

respect to the decision whether to grant a stay. David A. Wollin, Rhode Island Appellate

Procedure, § 8.3 at 8-5 (West 2004). Although all four of the above-referenced factors should be

considered, “[they] are not prerequisites that must be met, but are interrelated considerations that

must be balanced together.” Service Employees International Union Local 1 v. Husted, 698 F.3d

341, 343 (6th Cir. 2012) (quoting Michigan Coalition of Radioactive Material Users, Inc. v.

Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)).

        In its motion to stay, the town argues that all four of these factors have been met, and

therefore this Court should grant its motion. We agree. We briefly address each of the factors in

turn.

        First, the town has made a strong showing that it will prevail on the merits of its appeal.

The hearing justice likely erred in issuing the following mandatory preliminary injunction: “By

February 11, 2013, the [t]own is ordered to reinstate wages, hours and other terms and conditions

of employment that exi[s]ted pre-unilateral implementation[ ], i.e. prior to March 11, 2012.” 3 At

this stage, we deem the issuance of this injunction to be improper for several important reasons:

3
  Further, the town assails the hearing justice’s sua sponte issuance of several unrequested
declaratory judgments, arguing that they were made in contravention of due process. Because
we hold that the town has demonstrated a strong showing of success on appeal since the issuance
of the mandatory preliminary injunction was likely improper, we need not address the town’s
argument with respect to the purported due process violations stemming from the declaratory
relief.


                                               -3-
(1) neither party requested it; 4 (2) it directly contravened this Court’s well-settled precedent

established in Warwick School Committee v. Warwick Teachers’ Union, Local 915, 613 A.2d

1273, 1276 (R.I. 1992), in which we stated that “the Superior Court does not have original

jurisdiction of the question to determine what, if any, agreement is in force between

[management] and [a] union” and may not require the parties to enter into any particular

agreement; and (3) it was ordered absent the requisite findings 5 and without notice to the town,

as required by Rule 65(a)(1) of the Superior Court Rules of Civil Procedure. Although the union

urges this Court to instead characterize the hearing justice’s preliminary injunction as

supplementary relief based on a declaratory judgment (and therefore somehow proper), this

alteration in nomenclature is unavailing.

       We balance that strong showing of success on the merits with the other three factors—

whether the town has demonstrated irreparable harm, whether the union will not suffer

substantial harm, and whether the public interest will not be harmed. In our opinion, these other

factors are more equivocal. However, because “‘[t]he sine qua non * * * is whether the [town]

[is] likely to succeed on the merits,’ * * * the issuance of [the] stay depends on ‘whether the

harm caused [to the town] without the [stay], in light of the [town’s] likelihood of eventual

success on the merits, outweighs the harm the [stay] will cause [the union].’” Acevedo-Garcia v.

4
  At the time the hearing justice issued his decision, the union had not yet filed an answer to the
town’s amended complaint. This Court has consistently stated that “a party should not be
granted relief that it did not request.” Nye v. Brousseau, 992 A.2d 1002, 1011 (R.I. 2010)
(quoting Providence Journal Co. v. Convention Center Authority, 824 A.2d 1246, 1248 (R.I.
2003)).
5
  Before issuing a preliminary injunction, the hearing justice should have considered “(1)
whether [the union] established a reasonable likelihood of success on the merits; (2) whether [the
union] will suffer irreparable harm without the requested injunctive relief; (3) whether the
balance of the equities, including the public interest, weighed in favor of [the union]; and (4)
whether the issuance of a preliminary injunction served to preserve the status quo ante.” Allaire
v. Fease, 824 A.2d 454, 457 (R.I. 2003) (quoting School Committee of North Kingstown v.
Crouch, 808 A.2d 1074, 1077 (R.I. 2002)).


                                             -4-
Vera-Monroig, 296 F.3d 13, 16-17 (1st Cir. 2002) (quoting Weaver v. Henderson, 984 F.2d 11,

12 (1st Cir. 1993) and United Steelworkers of America v. Textron, Inc., 836 F.2d 6, 7 (1st Cir.

1987)).

          Thus, because the town has demonstrated a strong showing of success on appeal, it need

not make as strong a showing of irreparable harm. See Acevedo-Garcia, 296 F.3d at 16-17. In

this regard, the town has adequately demonstrated that it will suffer irreparable harm if the stay is

not granted. The town argues that it will be unable to recover the funds paid to the firefighters

during the period of the mandatory preliminary injunction, if, on appeal, this Court holds that the

town had the right to implement the changes outlined in its unilateral ordinance. 6 Although

pursuant to G.L. 1956 § 28-14-24(d), 7 the town, as an employer, is not precluded from

recovering any overpaid funds to the firefighters, it is our opinion that the town’s ability to

actually recover any of those funds is doubtful at best.

          Similarly, the town has also sufficiently demonstrated that the union will not suffer

substantial harm if the stay is granted. A granting of the stay essentially maintains the status quo

between the parties since the implementation of the ordinance in March 2012. We do not

disagree with the union that, under the terms of the town’s unilateral ordinance, the firefighters

are forced to work increased hours at a decrease in hourly pay. In its motion, the town has stated

that if the stay is granted “no firefighter stands to suffer a layoff and no firefighter will suffer a

6
  Patricia Sunderland, director of finance for the town, stated in an affidavit that it was her
expectation that, as of February 5, 2013, “if the [t]own is ordered to [abide by the mandate of the
preliminary injunction], * * * the actual fire department overtime expenses [would] exceed
budgeted overtime expenses by over $300,000 over the course of the remaining twenty weeks of
FY2012-2013.” Additionally, she stated that if the stay is not granted she expects “the [t]own’s
fire department overtime expenses to increase by approximately $20,000 per week to the pre-
implementation level.”
7
   In pertinent part, G.L. 1956 § 28-14-24(b) states that “[n]othing in this section shall be
construed to limit or restrict in any way any rights which the employer now has to recover, by a
separate legal action, any money owed the employer by the employee.”


                                              -5-
reduction in salary or benefits * * *. In fact, with a stay, each firefighter will continue receving

the 10% salary increase that went into effect on March 11, 2012.” We expect the town to remain

compliant with that affirmation made to this Court. Although the referenced salary increase is

accompanied by a significant change in hours, we cannot say that the firefighters will suffer

substantial harm if the stay is granted. Moreover, we emphasize that the Superior Court was

without authority to affirmatively set the terms and conditions of employment. See Warwick

School Committee, 613 A.2d at 1276.

        Lastly, at this juncture, we do not believe that the granting of the stay will harm the

public interest. We cannot say that the town’s decision to invoke unilateral change after the

union waived its right to interest arbitration per se harms the public interest. Although the

hearing justice previously determined that the ordinance itself was enacted in violation of the

town’s charter, that question as well as whether the town had an inherent managerial right to

enact such changes are looming issues for this Court on appeal. Absent further fact-finding, we

are unable to conclude that the public interest will be put at risk if the stay is granted.

        For the reasons set forth in this order, we grant the town’s motion to stay. Furthermore,

since final judgment has not entered with respect to count 5 of the town’s amended complaint,

we grant the parties’ joint motion to remand that count to the Superior Court. We direct the

parties to ensure that the appropriate papers are properly remanded.

        Justice Robinson did not participate.

        Entered as an Order of this Court this 10th day of May 2013.

                                                By Order,



                                                ________________/s/_____________________
                                                Clerk



                                                -6-
                          RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                               Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:      Town of North Kingstown v. International Association of
                    Firefighters, Local 1651, AFL-CIO et al.

CASE NO:            No. 2013-66-Appeal.
                    No. 2013-44-Appeal.
                    (WC-12-542)

COURT:              Supreme Court

DATE ORDER FILED:   May 10, 2013

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

WRITTEN BY:         N/A – Court Order

SOURCE OF APPEAL:   Washington County Superior Court

JUDGE FROM LOWER COURT:

                    Associate Justice Brian P. Stern

ATTORNEYS ON APPEAL:

                    For Plaintiff: Daniel K. Kinder, Esq.

                    For Defendant: Marc B. Gursky, Esq.
