STATE OF RHODE ISLAND DEPARTMENT OF HEALTH v. THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES No. PM
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC
Filed August 13, 2008
STATE OF RHODE ISLAND
DEPARTMENT OF HEALTH
v.
THE NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
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SUPERIOR COURT
C.A. No. PM 08-1050
DECISION
SAVAGE, J.
This action concerns the propriety of an arbitration decision that
interpreted a collective bargaining agreement between the Rhode Island Department of
Health and the National Association of Government Employees as requiring the
Department to give equal weight to an applicant’s education, experience and interview in
making any promotional decision under the contract. Although the Arbitrator found that
the assignment of equal weight to those three promotional criteria would not have
changed the Department’s promotional decision in this case, he nonetheless required the
Department to weigh the criteria equally with respect to all future promotional decisions.
The Department has filed a petition to vacate the Arbitration Award, arguing that
it was denied the opportunity to present evidence and legal argument to the Arbitrator on
this issue of contract interpretation. The Union has filed a cross motion to confirm the
Arbitration Award, contending that the Arbitrator was given broad power to interpret the
contract in deciding the issues presented at arbitration and that his interpretation was
reasonable.
For the reasons set forth in this Decision, this Court finds that the Arbitrator
exceeded his power by ruling on an issue of contract interpretation that was not properly
1
before him and by failing to make a mutual, final and definite award as to all issues
properly raised at arbitration. Accordingly, this Court grants the Department’s petition to
vacate the Arbitration Award and denies the Union’s motion to confirm it.
I.
Factual Background and Procedural History
The Department of Health (the “Department”) and the National Association of
Government Employees (the “Union”) are parties to a collective bargaining agreement
(the “CBA”). The CBA submits disputes to arbitration “arising out of the provisions of
this contract relating to the application or interpretation thereof.” CBA at 56 (emphasis
added). Section 10.13(3) of the CBA, at issue here, requires the Department to rank each
candidate for promotion based on his or her education, professional experience, and
interview. Id. at 21-22. The CBA is silent as to the weight to be assigned to each of the
criteria.
In July 2004, the Department posted a vacancy notice for the position of Senior
Nursing Care Evaluator – a job that requires the supervision of health care facility
inspections to ensure that the facilities are in compliance with state and federal
regulations and the applicable standards of care. Before posting the vacancy, the
Department constructed the selection criteria for promotion to the position. It based the
criteria on functional title, position classification and the needs of the Department.
Mindful that the Department intended to hire new facility surveyors and that those
persons would be expected to use new minimum data sets in the evaluation of facilities,
the Department developed the criteria to emphasize experience managing teams and
training personnel. It thus created a scoring sheet for the promotional applicants that
2
assigned 50% of the total points that could be awarded to the combined categories of
education and professional experience and the other 50% to the in-person interview. See
Deft’s Ex. G.
Four applicants applied, including Patricia Linehan, Marian Mulholland and
Maureen Farrelly. The Department selected Linehan for promotion, notwithstanding the
fact that she had lesser seniority than the other applicants. It did so based in part on her
strong interview, which reflected excellent supervisory skills and an interest in team
building and mentoring.
Following the promotion of Linehan, the Union filed a timely Level 1 grievance
on behalf of Mulholland and Farrelly, alleging simply that the Department violated
Article X of the CBA by not promoting either one of them. On May 24, 2005, Edward
D’Arezzo, the Assistant Director of the Department of Health, denied the Level 1
grievance. He found that the Department had followed the CBA in selecting Linehan for
promotion to Senior Nursing Care Supervisor.
The Union subsequently filed a Level 3 grievance before Belinda A. McLaughlin,
a Hearing Officer for the Department of Administration Labor and Employment Practice
Group. 1 On July 5, 2005, she denied that grievance. In her ruling, she framed the
Union’s argument, as follows:
The Union alleges that the department is not using the required uniform
numerical scoring format. The Union has no input on the format or how
the Department weighs it. The format used changes every time the
Department has a promotion. The process leads to customizing the format.
In this case, the format gives greater points for experience that could lead
to an advantage in the scoring process that would not otherwise be there. It
is not uniform. The individual who was appointed the position got
additional points the grievant did not. They were given a disadvantage for
professional experience. The whole process is flawed. The Union is asking
1
The record contains no evidence of a Level 2 grievance.
3
that the Department use a uniform scoring format and that the Department
redo the process for the subject position.
McLaughlin Dec’n at 2. In denying the grievance, she rejected the Union’s claim
that the scoring process had been done unfairly. There is no indication in her
decision that the Union raised or that she addressed the issue of contract
interpretation at issue here – namely the weight to be assigned to an applicant’s
education, experience and interview under the CBA.
The Union then timely filed a demand for arbitration, framing the dispute as
follows:
The employer, Department of Health, violated the collective bargaining
agreement including but not limited to Article X in the method it used to
make a promotion to Senior Nursing Care Evaluator.
Union’s Demand for Arbitration. The Union argued that the remedy should be rescission
of the Department’s decision to promote Linehan and an order requiring the Department
to make the promotion in accordance with the contract. Id. The parties subsequently
agreed to place the following issue before the Arbitrator for decision:
Did the Rhode Island Department of Health violate the collective
bargaining agreement when it selected Patricia Linehan for the post of
Senior Nursing Care Evaluator? If so, what shall be the remedy?
Stipulated Submission to Arbitration.
At arbitration, the Union argued that, under §10.13(3) of the CBA, the candidates’
seniority and qualifications should have been given equal weight, with seniority being
determinative in the event of a tie. It contended that the Department relegated seniority
to a meaningless position, allowing for promotion of Linehan over the two candidates
with greater seniority.
4
In response, the Department argued that it exercised its best judgment in
determining the most qualified candidate for promotion based on the applicants’
education, experience and interviews. It argued further that the Union could not claim
that the Department acted arbitrarily or capriciously in making its decision. As the
Department determined that Linehan was more qualified for promotion than the other
applicants, it argued that the candidates’ qualifications were not equal. As a result, the
Department claimed that it did not err in failing to use seniority as a determining factor in
its promotional decision.
The Arbitrator accepted the Department’s argument and found that seniority
should be a determinative factor only when the qualifications (which also include
seniority) are substantially equal. He reasoned:
I cannot read the introductory paragraph of section 10.13 to require the
Department give equal weight to seniority and qualifications. Rather, it
appears to provide only that seniority will be the tie-breaker if all of the
factors, including seniority and qualifications, are equal for two or more
candidates.
Arbitration Award at 10.
In its post-arbitration memoranda, the Union also raised, for the first time in the
arbitration proceeding, an argument that the Department improperly interpreted and
applied the CBA in awarding the subject promotion. It argued that the CBA requires the
Department to give equal weight to the promotional criteria, assigning 1/3 of the
applicant’s total score to education, 1/3 to experience and 1/3 to the interview. It further
argued that the Department skewed the proper weights to be afforded these criteria by
assigning education and experience, collectively, a weight of 50% and the other 50% to
the interview. This process, according to the Union, improperly gave undue weight to the
5
interview and minimized education and experience. According to the Union, therefore,
Linehan received the promotion because she interviewed better, even though she had the
least seniority.
Not anticipating this issue of contract interpretation, the Department did not
respond to these arguments of the Union in its post-arbitration memorandum. The parties
filed their memoranda simultaneously.
The Arbitrator nonetheless addressed the issue of contract interpretation raised by
the Union, without benefit of any evidence or legal argument from the Department. He
found:
The three criteria are treated the same in the agreement and there is no
language to suggest that any one is more important than the others or
should be weighted more heavily when making promotions.
Id. at 11.
Upset that the Arbitrator had ruled on an issue that it had not been given the
opportunity to address either from an evidentiary or a legal standpoint, the Department
moved to reopen the hearing. It asked for leave to submit evidence that was contrary to
the manner in which the Arbitrator, at the behest of the Union, had interpreted the CBA.
It wanted to submit proof of the Department’s alleged 20 year past practice of assigning
varying weights to the selection criteria in making promotional decisions. It also wanted
to submit legal argument on the issue of contract interpretation. The Arbitrator denied
the Department’s motion to reopen the hearing.
In addition, despite discussing both the issues of seniority and the weights to be
assigned to promotional criteria in the body of his ruling, the Arbitrator’s Award only
concerns the weights to be assigned to each of the criteria and does not contain his ruling
6
as to the issue of seniority. Although the Arbitrator found that the Department had erred
in interpreting the contract by failing to give the selection criteria equal weight, he
determined that weighing those criteria in that fashion would not have changed the
Department’s decision to promote Linehan. He nonetheless required the Department, in
dicta, to assign the selection criteria equal weight with respect to all future promotional
decisions under the CBA. 2
After the Arbitrator published the Arbitration Award, the Department filed a
petition to vacate his decision under R.I.G.L. § 28-9-18 and also sought a stay from this
Court to prevent implementation of the Arbitration Award. In response, the Union moved
to confirm the Arbitration Award. On March 7, 2008, this Court granted the motion to
stay, with the caveat that the Department’s petition to vacate and the Union’s motion to
confirm would be briefed and decided before any other unrelated promotional decisions
were made. The Court further ordered that the Department could return to this Court to
renew its motion to stay if it had to make any promotions prior to this Court’s decision on
the merits of the Department’s petition to vacate and the Union’s motion to confirm the
Arbitration Award.
On June 20, 2008, while this Court had the matter under advisement, the
Department informed the Court that it needed to go forward with the planned hiring of
critical nursing staff. In essence, it sought to renew its motion to stay, pending this
2
The Arbitrator’s Award states, in full, as follows:
The Department of Health violated the collective bargaining agreement when it selected
Patricia Linehan for the position of Senior Nursing Care Evaluator. Therefore, for all
future promotions, the Department shall give equal weight to the education, experience
and interview of each promotional candidate as required by Section 10.13(3) of the
parties’ agreement.
Arbitration Award at 14.
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Court’s decision on the merits of the petition to vacate and the motion to confirm.
Mindful of the Department’s expressed need to go forward immediately with the hiring
of critical nursing staff prior to this Court’s decision, this Court found: (1) that the
Department had established a likelihood of success with respect to its claim, contained in
its petition to vacate, that the Arbitrator had exceeded his power in ruling on an issue of
contract interpretation without affording the Department an opportunity to address that
issue from either a legal or evidentiary standpoint; and (2) that the Department could
suffer irreparable harm if it were required to make promotional decisions in accordance
with the Arbitration Award that it had proven, more likely than not, was in excess of the
Arbitrator’s power. Accordingly, this Court entered an order staying the decision of the
Arbitrator, pending the decision of this Court on the merits of the petition to vacate and
the motion to confirm.
II.
The Parties’ Arguments
In its memorandum filed with this Court, the Department takes the position that
the Arbitration Award should be vacated because the Arbitrator “exceeded his power[],
or so imperfectly executed [it], that a mutual, final, and definite award upon the subject
matter submitted was not made.” R.I.G.L. §28-9-18(a)(2). The Department contends that
the Union never validly submitted to arbitration the issue of the weight to be assigned to
each of the selection criteria under the CBA because: (1) the Union never raised such an
argument before filing its post-arbitration brief; and (2) the Department had no
opportunity to respond to that argument or to enter contrary evidence regarding the
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proper interpretation of the CBA. 3 The Department avers that, by ruling on this issue of
contract interpretation, without affording the Department the opportunity to brief it or to
present evidence of its past practice as an aid in interpreting the CBA, the Arbitrator
exceeded his power and imperfectly executed it. The Department also contends that by
denying it the opportunity to present evidence and argument as to the weight to be
assigned to the selection criteria, the Arbitrator effectively amended the contact, instead
of interpreting it, in violation of Rhode Island law. The Department also argues that
interpreting the contract to require it to assign equal weight to the promotional criteria
interferes with its managerial discretion and infringes upon its statutory duty to protect
the public health. It maintains that it needs to weigh the interview responses as heavily as
the candidates’ combined education and experience to ensure that the best possible
candidate is promoted to the position of Senior Nursing Care Evaluator.
In response, the Union contends that there is no basis in law for vacating the
Arbitration Award because the weight to be assigned to the promotional criteria under the
CBA was the subject of arbitration. The Union argues that this question was
encompassed within the broad language of the parties’ stipulated arbitration statement.
Moreover, the Union contends that §10.13 of the CBA -- outlining the criteria for
promotion -- was submitted to the Arbitrator and made part of the record, as was the
Department’s score sheet for the candidates that listed the three criteria. Finally, the
Union points to the original grievance, which was predicated upon its assertion that the
process used by the Department was not in conformity with Article X of the CBA, and
3
It is unclear to this Court why the Department has not moved for modification or correction of the
Arbitration Award under R.I.G.L. §28-9-20(2). That statute specifically provides for modification:
“[w]here the arbitrator or arbitrators have awarded upon a matter not submitted to them not affecting the
merits of the decision upon the matters submitted.” (emphasis added).
9
the hearing officer’s July 5, 2005 ruling on that grievance, as evidence that the
Department had notice that the weight to be assigned to the promotional criteria was an
issue specifically grieved by the Union. 4 Thus, the Union contends, it is clear that the
Arbitrator had the authority to interpret the CBA to determine whether proper procedures,
including the appropriate weight to be assigned to the selection criteria, were followed.
Furthermore, the Union asserts that the Arbitrator’s interpretation of the disputed
provision of the CBA was “passably plausible” and “drew its essence” from the CBA
because his assignment of equal weight to each of the selection criteria is a reasonable
interpretation of the contract.
IV.
Standard of Review
In Rhode Island, there is a strong policy in favor of finding arbitrability. “A court
shall rule in favor of submitting a dispute to arbitration unless the arbitration clause of the
collective bargaining agreement cannot be interpreted to include the asserted dispute, and
all doubts should be resolved in favor of arbitration.” R.I. Court Reporters Alliance v.
R.I., 591 A.2d 376, 378 (R.I. 1991) (citing United Steelworkers of America v. Warrior &
Gulf Navigation Co., 363 U.S. 574, 582-83 (1960)). In this case, however, this Court is
not asked to rule on whether the weight to be afforded the promotional criteria is
arbitrable under the CBA. Instead, the Court must determine whether that question of
CBA interpretation was ever a subject of arbitration.
This Court's “authority to review the merits of an arbitration award is very
limited.” R.I. Brotherhood of Correctional Officers v. State Dept. of Corrections, 707
4
The Department strenuously rejects this assertion and responds that the hearing officer’s ruling dealt only
with promotional criteria from another portion of the CBA and not the weight to be afforded education,
experience and the interview in the promotional process.
10
A.2d 1229, 1234 (R.I. 1998) (citations omitted). “Only in cases in which an award is so
tainted by impropriety or irrationality that the integrity of the process is compromised
should courts intervene. This policy of finality is reflected in the limited grounds that the
Legislature has delineated for vacating an arbitration award.” Prudential Prop.& Casualty
Ins. Co. v. Flynn, 687 A.2d 440, 441 (R.I. 1996) (citing Aetna Casualty & Surety, Co. v.
Grabbert, 590 A.2d 88, 92 (R.I. 1991)).
Rhode Island General Laws §28-9-18 specifies the grounds upon which labor
arbitration awards may be vacated:
(a) In any of the following cases the court must make an order
vacating the award, upon the application of any party to the
controversy which was arbitrated:
(1) When the award was procured by fraud.
(2) Where the arbitrator or arbitrators exceeded their powers, or so
imperfectly executed them, that a mutual, final, and definite award0
upon
the
subject
matter
submitted
was
not
made.
(3) If there was no valid submission or contract, and the objection has
been raised under the conditions set forth in § 28-9-13.
(Emphasis added).
In interpreting §28-9-18(a)(2), the Rhode Island Supreme Court
stated: “[a]n arbitrator exceeds his or her powers ‘by resolving a non-arbitrable dispute or
if the award fails to draw its essence from the agreement, if it was not based upon a
‘passably plausible’ interpretation thereof, if it manifestly disregarded a contractual
provision, or if it reached an irrational result . . . .’” City of East Providence v. USW
Local 15509, 925 A.2d 246, 252 (R.I. 2007) (quoting Woonsocket Teachers' Guild, Local
951, AFT v. Woonsocket School Committee, 770 A.2d 834, 837 (R.I. 2001) (quoting
State Dep’t of Children, Youth & Families v. R.I. Council 94, 713 A.2d 1250, 1253 (R.I.
1998)).
11
To determine whether an arbitration award is in excess of the arbitrator’s power
by deciding an issue beyond the substantive issues submitted by the parties, the inquiry of
a court “focuses on whether the arbitrator had the power, based on the parties’
submission or arbitration agreement, to reach certain issues, not whether arbitrators
correctly decided those matters.” 3 Thomas H. Ohmke, Commercial Arbitration,
§146:1(3rd ed. 2007) (emphasis added) (discussing 9 U.S.C.S. §10(4) which is mirrored
by R.I.G.L. §28-9-18(a)(2)); see Mantle v. Upper Deck Co., 956 F. Supp. 719 (N.D. Tex.
1997). “Defining the scope of the Arbitrator’s authority begins with the parties’ contract
documents and extends beyond to the arbitration process (i.e., administrative conferences,
preliminary hearing, post-hearing briefing stage) if the parties have included additional
issues for the arbitrator’s determination.” Id. § 146:2 (emphasis added). Although this
treatise passage concerns expanding the scope of arbitrable issues, its logic also applies
where there has been a broad submission to arbitration. In such a case, the issues litigated
before an arbitrator are defined and focused by the evidence, submissions and requests
for relief of the parties before and during the hearing.
The second ground for vacating an arbitration award found in §28-9-18(a)(2) -“that a mutual, final, and definite award upon the subject matter submitted was not
made”-- permits relief where “the award itself [in the sense of a judgment, order or final
decision] is incomplete by leaving unresolved a portion of the dispute that was supposed
to have been decided.” Id. § 147:1. The terms mutual and final mean that the arbitrator
must resolve the entire dispute that was submitted. Fradella v. Petricca, 183 F.3d 17, 19
(1st Cir. 1999).
12
Although not the subject of R.I.G.L. §28-9-18, 5 an award may be vacated if the
arbitrator denies a party a meaningful opportunity to argue or present evidence on an
issue decided, because doing so fundamentally undermines the propriety of the
proceeding. Hoteles Condado Beach, La Concha & Convention Center v. Union de
Tronquistas, 763 F.2d 34, 39 (1st Cir. 1985) (“The arbitrator is not bound to hear all of the
evidence tendered by the parties; however, he must give each of the parties to the dispute
an adequate opportunity to present its evidence and arguments.” See also Nat'l Post
Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 841 (6th Cir. 1985)
(“Arbitrators are not bound by formal rules of procedure and evidence, and the standard
for judicial review of arbitration procedures is merely whether a party to arbitration has
been denied a fundamentally fair hearing”). 6 “As long as the objecting party has ample
opportunity to present evidence, then there is no abuse on the arbitrator’s part.” City of
Central Falls v. Central Falls Fire Fighters, Local 1485, 2002 R.I. Super. LEXIS 131 at 7
(R.I. Super. 2002) (citing Taylor et. al v. Delta Electric Power, Inc., 741 A.2d 265, 267
(R.I. 1999) (refusing to vacate under § 10-3-12(3) because the parties were given ample
5
Compare R.I.G.L § 28-9-18 with R.I.G.L. §10-3-12(3), allowing vacatur:
“Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause
shown, or in hearing legally immaterial evidence, or refusing to hear evidence pertinent and material to the
controversy, or of any other misbehavior by which the rights of any party have been substantially
prejudiced.” (emphasis added).
Compare R.I.G.L § 28-9-18 with 9 U.S.C.S. §10(3), allowing vacatur:
“Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause
shown, or refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior
by which the rights of any party have been substantially prejudiced.” (emphasis added).
6
See also Totem Marine Tug & Barge, Inc. v. North American Towing, Inc., 607 F.2d 649, 651 (5th Cir.
1979) (“An arbitration proceeding is much less formal than a trial in court . . . In handling evidence an
arbitrator need not follow all the niceties observed by the federal courts . . . He need only grant the parties a
fundamentally fair hearing. All parties in an arbitration proceeding are entitled to notice and an opportunity
to be heard.” (citations omitted); Bell Aerospace Co. Div’n of Textron, Inc. v. Local 516, Int’l Union,
United Automobile Workers of America, 500 F.2d 921, 923 (2nd Cir. 1974) (“In handling evidence an
arbitrator need not follow all the niceties observed by the federal courts. He need only grant the parties a
fundamentally fair hearing.”)
13
opportunity to argue and present evidence). 7 Where an arbitrator decides an issue on
which one of the parties was not provided an opportunity to present argument or
evidence, the ultimate ruling takes on the character of an amendment to the CBA instead
of an interpretation of contract. See State of R.I. v. R.I. Employment Security Alliance,
840 A.2d 1093, 1096 (R.I. 2003) (“Amendment by interpretation effectively usurps the
role of the labor organization and the employer in the collective bargaining process.”)
(citations omitted).
V.
Analysis
The CBA at issue here submits disputes to arbitration “arising out of the
provisions of this contract relating to the application or interpretation thereof.” CBA at
56. Thus, disagreements over an interpretation of the CBA are arbitrable disputes. In this
case, the parties stipulated to place the following issue before the Arbitrator for decision:
Did the Rhode Island Department of Health violate the collective
bargaining agreement when it selected Patricia Linehan for the post of
Senior Nursing Care Evaluator? If so, what shall be the remedy.
Stipulated Submission to Arbitration. This submission is so broad that it could
encapsulate the issue of whether the CBA should be interpreted to determine the weight
to be assigned to each qualification for promotion. Yet, the actual scope of the subject
7
See also Hart v. Kennedy, 47 N.J.Eq. 51 (Ch. 1890) (“The Parties have a right to be heard by their proofs.
It is founded in natural justice.” ); Cortlandt v. Underhill, 17 Johns 405, 411 (N.Y. Ct. Errors 1819) (“If the
Arbitrators refuse to hear evidence pertinent and material to the matter in controversy, it is unquestionably
such misconduct as will vitiate an award in a court of equity. . . it would be an alarming doctrine to hold
that there can be no relief against an award, even if the arbitrators outrage every principle of justice in
refusing to hear the proofs of one of the parties.”).
14
arbitration was defined by the evidence and arguments put forth by the parties at the
arbitration hearing.
At no time before or during arbitration was the Arbitrator presented with the issue
of contract interpretation ultimately decided by him -- namely, the weight to be afforded
the three promotional criteria under the CBA. The actual issue litigated at arbitration was
the role that seniority should play in promotional determinations. Although the parties
submitted to the Arbitrator Article X of the CBA (which lists education, experience and
an interview as the three criteria for promotion) and the Department’s scoring sheet, these
documents are relevant not only to an issue of contract interpretation involving the
selection criteria but also to the role of seniority in any promotional decision. The
documents thus fail to suggest that the parties had put in issue any question of contract
interpretation involving the weight to be assigned the three promotional criteria.
In fact, it was not until the Union filed its post-arbitration brief that it first raised
this issue of contract interpretation. While the Union attempts to suggest that it raised
that issue during the grievance proceedings, as evidenced by the hearing officer’s
decision on the Level 3 grievance, there is nothing in the record of grievances, that
decision or the record of the arbitration hearing to suggest that this issue of contract
interpretation -- as opposed to the question of the fairness of the scoring procedure or the
role of seniority in the promotional decision -- was grieved or arbitrated.
Even after the Union filed its post-arbitration brief and raised this issue of
contract interpretation for the first time, the Department was denied any meaningful
opportunity to respond to it. While it moved to reopen the arbitration hearing to present
evidence and legal argument regarding the issue of the appropriate weight to be assigned
15
to the promotional criteria under the CBA, the Arbitrator denied its motion. As a result,
the Department was deprived of any chance to argue the intent of the parties in outlining
the selection criteria in the contract and to present evidence of the Department’s past
practice in weighing those criteria in making promotional decisions.
Where an arbitration submission is extremely broad, the only logical way to
determine the issues before the arbitrator is to look at the evidence and legal arguments
that the parties presented. The introduction of a specific contract-based claim for relief
must come before the filing of simultaneous post-arbitration briefs or the hearing must be
reopened to allow the opposing party an opportunity to respond to such a claim for relief
through the presentation of evidence and legal argument. See Generica v. Pharmaceutical
Basics, 125 F.3d 1123, 1130 (7th Cir. 1997) (“An arbitrator must provide a fundamentally
fair hearing . . . one that meets the minimal requirements of fairness -- adequate notice, a
hearing on the evidence, and an impartial decision by the arbitrator. . . .”). 8
Thus, because the only issue properly before the Arbitrator here was the role that
seniority would play in the promotional decision making process, “the [A]rbitrator
exceeded [his] powers” by interpreting the CBA to determine the weight to be afforded
the selection criteria. § 28-9-18(a)(2). Moreover, the denial of an opportunity for the
Department to present evidence and legal argument concerning this issue of contract
interpretation tainted the proceeding with impropriety and unfairness to such an extent
that the Arbitration Award must be vacated. See Aetna Casualty & Surety Co. v.
Grabbert, 590 A.2d at 92.
8
See also Manchester Township Bd. of Educ. v. Carney, 199 N.J. Super. 266, 274 (N.J. Super. 1984)
(“There was no discretion to be exercised by the arbitrators whether to permit rebuttal testimony.”).
16
To rule otherwise would require the Department to speculate as to all of the
Union’s potential arguments for breach of a 74-page collective bargaining agreement and
then enter evidence and legal authority to counter those arguments, regardless of whether
that evidence was proffered or those arguments were advanced by the Union before or
during the arbitration hearing. Judicial endorsement of such a method of defining the
issues at arbitration -- which also would deny litigants like the Department an opportunity
to respond to an adversary’s new claim for relief first posited in a post-arbitration brief -would be to sanction an unfair hearing process that could undermine the public’s faith in
arbitration. See Aetna Casualty & Surety Co. v. Grabbert, 590 A.2d at 92 (“No matter
how desirable the finality of an arbitration award may be, it is more important that an
award be rendered free from any improprieties that affect the award and that could
destroy public confidence in and the integrity of the arbitration process”). As the Court
stated in Cortlandt v. Underhill, 17 Johns 405, 411 (N.Y. Ct. Errors 1819);
[T]o uphold and maintain the awards of arbitrators, when they are guilty
of such gross and scandalous misbehavior as to refuse to hear material
evidence, would . . . produce a universal dread of that mode of adjusting
differences. Independently of what is due to individual justice, it would be
an alarming doctrine to hold that there can be no relief against an award,
even if the arbitrators outrage every principle of justice in refusing to hear
the proofs of one of the parties.
Furthermore, because the Arbitrator in this case interpreted the CBA provision
concerning the criteria for promotions without providing the Department with an
opportunity to present its case, the ruling could be viewed as an improper amendment to
the contract instead of an interpretation of it. See R.I. Employment Security Alliance, 840
A.2d at 1096 (“Amendment by interpretation effectively usurps the role of the labor
organization and employer in the collective-bargaining process”). In this proceeding, the
17
contract is silent as to the weight to be assigned the three selection criteria. It must be
deemed, therefore, to be ambiguous in this regard. However, by construing the contract to
assign equal weight to those criteria, without allowing the parties to present extrinsic
evidence and argument as to their intent in drafting the contract or their custom and
practice in implementing it, the Arbitrator effectively added a term to the contract to
which at least one party did not consent.
This flaw in the arbitration process seems even more egregious because it was not
necessary for the Arbitrator to reach this issue of contract interpretation; as the dicta in
the decision makes clear, Linehan would have been entitled to her promotion regardless
of whether the contract were interpreted in the manner advocated by the Arbitrator. Such
a flaw contravenes the reasoning in R.I. Employment Security Alliance and is contrary to
the CBA itself. See CBA Art. XXXV “Alteration of Agreement” (“any alteration or
modification of this agreement shall be binding on the parties hereto only if executed in
writing and mutually agreed to by the parties”). 9
Finally, the Arbitrator failed to include in the Arbitration Award his ruling with
respect to the issue that the parties had properly submitted to arbitration and which was
included in the body of his decision – namely, the role that seniority would play in the
selection process. He thus failed to make a definitive award as to those matters that were
properly submitted to him.
This Court finds, therefore, that the Arbitrator “exceeded his power[], or so
imperfectly executed [it], that a mutual, final and definite award upon the subject matter
9
This Court leaves for another day the question of whether interpreting the contract to require the
Department to assign equal weight to the promotional criteria interferes with the Department’s managerial
discretion and infringes upon its statutory duty to protect the public health. See Central Falls School
District Board of Trustees v. Central Falls Teacher’s Union, C.A. No. PC 07-4684 August 7, 2008
(SAVAGE, J.)
18
was not made.” §28-9-18(a)(2). Under §28-9-18(a)(2), therefore, the Arbitration Award
must be vacated.
VI.
The Remedy
The only remaining question, therefore, is whether this Court simply should grant
the Department’s petition to vacate or whether, instead, the matter ought to be remanded
for the taking of further evidence and argument at arbitration as to the question of
contract interpretation. The Department asks that the Arbitration Award be vacated or,
alternatively, that the case be remanded to arbitration to allow it to submit evidence and
argument regarding the issue of contract interpretation that the Arbitrator decided
improperly.
Reversing the decision of the Arbitrator and remanding this case for further
hearing (either before the same or a different arbitrator) would have the benefit of
resolving an issue of contract interpretation that may continue to raise its head with
respect to future promotional decisions under the CBA. See § 28-9-19 (“Where an award
is vacated, the court, in its discretion, may direct a rehearing either before the same
arbitrator or arbitrators or before a new arbitrator.”) It would provide guidance to the
Department in making future promotions and guidance to Union members in applying for
these positions.
As the issue of contract interpretation was not properly raised during arbitration,
however, and as it is unnecessary to resolve that issue in this case given the Arbitrator’s
undisputed finding that it would not change the Department’s decision to promote
Linehan, this Court is reluctant to order a remand that is not requested (except as an
19
alternative remedy) by either party. Instead, absent the agreement of both parties to
remand, it simply will vacate and deny confirmation of the Arbitration Award.
VII.
Conclusion
For all of the reasons set forth in this Decision, the Department’s petition to
vacate the Arbitration Award is granted. The Union’s motion to confirm the Arbitration
Award is denied. The matter will not be remanded for further hearing, absent the
agreement of both parties.
Counsel shall confer and submit to this Court forthwith for entry, a form of order
and judgment that is consistent with this Decision.
20
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