RI Supreme Court Finds the Loophole They Were Looking For – Welcome to the Dark Ages of Collective Bargaining

No, it’s not a fake news headline from a satirical website like Call The Cops

In a stunning reversal the Rhode Island Supreme Court has ruled that the Town of North Kingstown was justified in increasing the hours of its firefighters by 14 hours per week without bargaining because the firefighters’ union failed to meet a statutory deadline.

Many in the Rhode Island fire service and labor in general have been speculating that the RI Supreme Court was searching to find a way out for the town that over the past four years has thumbed its nose at collective bargaining laws, losing every decision at the state labor board and superior court levels in the process. Nevertheless, the town has somehow managed twice now to prevail at the supreme court level.

The decision is a long one, 26 pages, and is not an easy read. Two key points from the ruling that will inevitably change the collective bargaining landscape for firefighters in Rhode Island are:

  1. The number of shifts (platoons or groups) that a fire department has is a management prerogative that a department does not have to bargain over.

To a non-firefighter this may not seem like too big a deal. After all, a private employer (Home Depot) gets to decide its hours of operation and rightfully shouldn’t have to bargain that with employees. The problem is the number of shifts that a fire department has impacts matters well beyond what most folks think of when they say “shifts”. Fire departments are 24/7/365 operations and unlike Home Depot, firefighters are not assigned “hours”, they are assigned to set shifts/platoons.

To fully comprehend the impact, a little background in labor law is necessary. Collective bargaining laws make certain topics “mandatory subjects” for negotiation. For firefighters in Rhode Island, the Firefighter’s Arbitration Act makes “wages, rates of pay, hours, working conditions, and all other terms and conditions of employment” mandatory subjects. In other words, changes to a firefighter’s hours – by state law – must be negotiated. This is no different than the National Labor Relations Act or most public sector collective bargaining laws.

Consider the difference between fire departments that have two, three, or four shifts/platoons.

  • Two shifts – everyone works 84 hours
  • Three shifts – everyone works 56 hours
  • Four shifts – everyone works 42 hours

How does a fire department go from four shifts to three without a change in hours? It can’t happen. When you change the number of shifts you inevitably change the number of hours that all firefighters work. It is not like Home Depot eliminating their “third shift” – where folks who used to be on that shift still work 40 hours, just at a different time of day. Eliminating a shift in a fire department increases the hours per week that every firefighter has to work. It changes the days they work, their vacation choices, the number of officers/firefighters required… In short – it changes virtually everything of importance in the workplace that used to be bargainable. The court simply glossed over that distinction… if they even realized it.

But here is something that cannot be glossed over: The RI Firefighters Arbitration Act specifically makes “hours” a mandatory subject for bargaining. If the number of shifts/platoons is a management prerogative – what is the point of  “hours” being a mandatory subject for bargaining? With this one ruling the supreme court has essentially gutted  the term “hours” from § 28-9.1-4 and removed it from the scope of collective bargaining for firefighters.

Welcome to the Dark Ages of Collective Bargaining… when an employer can LEGALLY increase your hours by 14 per week – offer no additional compensation… and do so because it is exercising a management prerogative of “restructuring platoons”.

The state labor board refused to buy that argument. A superior court judge would not buy it either. But in the end all that mattered was that the supreme court bought it.

  1. A firefighter’s union must give “written notice of request for collective bargaining on the corporate authorities at least one hundred twenty (120) days before the last day on which money can be appropriated by the city or town to cover the contract period which is the subject of the collective bargaining procedure.” Section 28-9.1-13; G.L. 1956 § 28-9.2-13.

Again, this may not seem like a big deal to folks not familiar with labor relations. I mean, come on – file on time and you are all set. Right? What is the big deal?

However, to anyone who has been through protracted collective bargaining in Rhode Island, where it is easy to be 2, 3, 4 or more years behind in contracts, the absurdity of making such a deadline so intractable is obvious.

Consider the following common scenario: A collective bargaining agreement for 2009-2010 ends on June 30, 2010. The parties are in arbitration for a new contract to run from July 1, 2010 to June 30, 2011. Assume it is December, 2010. Should the union file for collective bargaining for July 1, 2011 (2011-2012) even though the prior year (2010-2011) is still being arbitrated? Absolutely… let’s assume they do so.

Let’s fast forward a year to December, 2011 and arbitration of the 2010-2011 contract is still proceeding (very common to drag on that long)… negotiations for 2011-2012 are now in a holding pattern. The parties have been discussing a new 3 year deal intended to run from July 1, 2010 to June 30, 2013. Should the union file for collective bargaining for July 1, 2012? Seems kind of silly, doesn’t it? Its like just going through the motions, for the sake of going through the motions. What possible detriment befalls a community when the union in this situation fails to file a notice?

Well according to the Rhode Island Supreme Court, that 120 day notice requirement is SO IMPORTANT – SO INTEGRAL – SO FUNDAMENTAL to labor relations that a union that fails to file on time loses its rights to collectively bargain over any monetary related issues, and frees management to unilaterally implement as it pleases. Let’s use the court’s own words:

“we hold that the union’s failure to comply with § 28-9.1-13 vitiated any obligation of the town to bargain regarding any matter requiring the appropriation of money.”

In other words… even though the parties are still arbitrating a contract from two years ago – if you miss the deadline by even a day then the employer has free reign over monetary issues… health care, wages, pension benefits – can unilaterally increase the employees’ hours for no additional compensation – because of a technicality about written notice…

Incidentally, both the superior court judge who handled the case and the state labor board rejected such a hard-nose contention as being inconsistent with the principles of collective bargaining. The state labor board’s ruling on this matter in particular should carry significant weight as the administrative agency charged by the legislature with carrying out the state’s public sector collective bargaining laws, and whose interpretations should be entitled to deferential treatment by the courts.

To provide some specific context to the missed deadline issue in the North Kingstown case, Ray Furtado, President of North Kingstown Firefighters IAFF Local 1651, graciously offered the following:

I was dismayed to see the Supreme Court determine that the Union did not provide notice of intent to bargain with the Town for the 2011-12 contract, considering the clear understanding between Town Manger Embury and myself that we would not hold each other accountable for timelines under the Fire Fighters Arbitration Act. [see correspondence below] We both agreed it would be impossible to adhere to the statute since we were engaged in the aforementioned arbitration at the time, and we couldn’t intelligently approach negotiations until we knew what the contract terms of the preceding year would contain. That is just common sense, and in the spirit of a good-faith relationship. After all, had we requested bargaining, it would have triggered timelines that only would have placed each of us at a disadvantage entering the next negotiation cycle. Further, Embury’s email regarding his late response to our bargaining request is telling. It destroys the notion that we did not “request bargaining” by the statute, and is one of the many findings of bad faith activity well vetted by the State Labor Relations Board. We look forward to the Supreme Court’s consideration of the facts in that case in the upcoming appeal.

Letter from Embury to President Furtado: Michael_Embury_-_03-11-11_-_UKH2SWV

(note that Embury’s letter was sent after the mandatory 10 day period that state law allows for the town to reply to the union’s request… Apparently when the town violates the 10 day period it is given by state law, the error is considered to be harmless… only the union’s failure to file on time is capable of “vitiating” any obligations)

Email from Embury indicating he expected Local 1651 to look past the “timeliness” issue since both parties “ work as cooperatively as possible”: Embury

Ray Furtado’s reply:RayFurtadoReply

Here are some of the more important portions of the ruling:

  • The town’s position before the Superior Court was that it had the inherent right to reorganize into the three-platoon structure, especially in light of the fact that the CBA had expired and the union had failed to request interest arbitration of unresolved issues within the time frame delineated by the FFAA as set forth in § 28-9.1-7.
  • Additionally, the town contended that the union had forfeited its right to collectively bargain altogether due to the union’s failure to comply with the notice provision of § 28-9.1-13.
  • At the heart of this litigation is the town’s unilateral implementation of a three-platoon structure and the effects of that reorganization, including the change to a twenty-four hours on, forty-eight hours off schedule.
  • The FFAA recognizes firefighters’ “right to bargain collectively * * * as to wages, rates of pay, hours, working conditions, and all other terms and conditions of employment.” Section 28-9.1-4. Additionally, as long as a union complies with applicable notice provisions, the FFAA establishes an obligation on a city or town to meet and confer in good faith with the union for collective bargaining purposes
  • After review of the record and in light of our consideration of the particular circumstances that have given rise to the long and bitter conflict between these parties, we hold that the decision to implement the three-platoon structure is a management right of the town.
  • Further, we stated that the statute in question operated “like an appeals statute, condition[ing] rights thereunder on full compliance with the stated requirements.”
  • [In Town of Tiverton v. Fraternal Order of Police, Lodge #23, 118 R.I. 160, 372 A.2d 1273 (RI, 1977)] we held that because the union’s notice was not timely, “the town was not obliged to negotiate with the [union] on any issues falling within the purview of § 28-9.2-13.”
  • Here, the Superior Court justice correctly recognized that it was “clear that the Union did not give the required notice prior to the 120-day time frame.” Notwithstanding, he declined to find that the union had forfeited its right to bargain over matters requiring the appropriation of money. He put particular significance on the fact that the parties actually negotiated after receipt of the defective notice. This emphasis was misplaced.
  • We discern no legally distinguishable difference from what occurred here. Accordingly, we hold that the union’s failure to comply with § 28-9.1-13 vitiated any obligation of the town to bargain regarding any matter requiring the appropriation of money.
  • The union argues that the parties mutually agreed to extend the period for negotiations.
  • [T]he hearing justice found that there was no evidence that the parties expressly agreed to either any particular time frame for negotiations or an extension of such a time frame to a particular point. We find no error in that determination.
  • Without an express agreement to extend the deadline, the hearing justice was correct in determining that the deadline of § 28-9.1-7 could not be extended
  • Here, it is our opinion that the town’s actions in implementing its decision to change to a three-platoon structure were lawful under the circumstances before us in this case. We reach this determination based on the union’s failure to timely comply with § 28-9.1-13, its failure to timely submit unresolved issues to arbitration pursuant to § 28-9.1-7, and our reliance on both our own precedent and that of other courts. Critical to this holding is that the union had knowledge that the town had proposed to implement the three-platoon structure as early as the negotiations and hearings before the arbitration panel for the July 1, 2010 to June 30, 2011 contract year. Additionally, the union was put on formal notice at least as early as the first negotiation session on October 28, 2011, regarding matters pertaining to the 2011-2012 contract year, of the town’s proposal to implement the three-platoon structure.
  • Moving forward, the town may continue to assert the decision to implement the three-platoon structure as a management right. The town is not required to bargain with the union regarding this decision.
  • Nonetheless, provided that the union complies with the FFAA’s requirements and makes timely requests, the town must bargain regarding the effects of its decision to implement the three-platoon structure.

One final point. Back when folks were debating the need for Rhode Island to have its own law school, one of the chief arguments made was that by having an in-state school, law professors and students writing law review articles would serve as an important check on judges who previously were not scrutinized to the same extent as judges in states with their own law school. The argument was that judges subject to law review scrutiny would be less likely to let their political beliefs overrule their obligation to follow the law. As a result having an in state law school would likely result in better reasoned decisions.

Roger Williams University Law School has a number of respected professors who would be much better suited than I to evaluate what has just transpired, and I hope some will answer the call. Was the court’s decision in Town of North Kingstown v. IAFF Local 1651 a thinly-veiled political decision or a well reasoned act of jurisprudence that all Rhode Islanders can be proud of?

From my perspective, either you have collective bargaining for public employees, or you don’t have collective bargaining for public employees. That decision belongs to the legislature, and is inherently a political one. Courts should not use their intellectual powers and judicial slight of hand to take away rights that the legislature has so clearly granted.

How long will Rhode Island remain the Dark Ages of Collective Bargaining? That is now up to the state legislature, and whether it will choose to reverse one or both of these two issues.

Here is the ruling: Town of North Kingstown v. International Association of Firefighters, Local 1651 AFL-CIO, et al. (Opinion)

Here is a press release from Local 1651: Press Release – 1.9.15

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer’s Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

  • J Reese

    The heart of this ruling still doesn’t make sense to me, even after reading over it multiple times and considering all you’ve written here. If a municipality has the right to unilaterally reorganize the structure of a department, yet the effects of that change must be bargained over-including the inevitable change in hours that comes with it-how, if the union adheres to all applicable timelines, is the town actually able to implement that change? It seems to me that their right to re-structure the department hinges on collective bargaining and/or arbitration, so where is the advantage for the municipality?

    In this specific case, I’d have to agree that the court got it wrong. Maybe I’m a bit biased, but if I’m engaged in arbitration for prior contract years, I’d be hard pressed to find justification in filing an intent to bargain for the upcoming contract year. Guess I’ll need to start sending my papers in every year no matter what now…

    • CurtVarone

      Jon… it is crazy – and you know what – if the town was somehow victimized by the union missing the 120 day filing I’d say… well, the union’s failure to file hurt the town and they have to face the consequences.

      That was not the case here. There was no harm done. In fact based on the correspondence between Ray Furtado and Embury it was obvious neither side was holding the other to strict compliance with the time frames. This was the town taking advantage of an opportunity – and the supreme court letting them.

      As for the scope of bargaining issue – just a terrible ruling. You have an expired CBA that addresses shifts and hours that is by law extended as the arbitration plays itself out over the course of years. As that arbitration is playing itself out the employer unilaterally alters those contractual provisions… The decision clearly changes the firefighter’s hours in a MAJOR WAY. 14 extra hours per week… every week… It is not just the elimination of a shift or the right to reorganize the department. Could the supreme court look its own employees (clerks, sheriffs) in the eyes and tell them: you all now have to work an extra 7 hours every Saturday and 7 hours every Sunday for no more pay EVERY WEEK… and we are not bargaining over it. Its done… like it or lump it.

      This was a blatant attempt by the town to circumvent the clear legislative intent of the collective bargaining laws – and the supreme court put their stamp of approval on it.

  • David Costa

    To use there words in the decision:

    “As explained by the First Circuit: “[T]here is an important distinction between the right to bargain about a core entrepreneurial business decision (a right which a union does not possess) and the right to bargain about the effects of that decision on employees within a bargaining unit (a right which, depending upon the overall circumstances, a union may possess). * * * [Put another way], even when a particular managerial decision is not itself a mandatory subject of bargaining, the decision’s forecasted impact on * * * terms and conditions of employment may constitute a mandatory subject of collective bargaining.” Providence Hospital, 93 F.3d at 1018.

    It is within this framework that we analyze the propriety of the town’s actions in implementing the three-platoon structure.]…[After review of the record and in light of our consideration of the particular circumstances that have given rise to the long and bitter conflict between these parties, we hold that the decision to implement the three-platoon structure is a management right of the town….

    Nonetheless, while the decision to implement the three-platoon structure is a management right, it remains that the effects of that decision are subject to the FFAA’s bargaining requirements.”

    While I still do not buy their argument that implementing the 3 platoon system is strictly a “management right”, they then say that the effects of the decision i.e. wage or hour disputes as outlined in § 28-9.1-10 are subject to FFAA’s bargaining requirement. Just doesn’t make sense.

    By their words, the town still has to bargain about the effects, so the only thing this decision does is get the town out of any retroactive wages once the wages are finally negotiated on a going forward basis. Supposedly because of a delayed notification, which both sides apparently agreed to.

    • CurtVarone

      Dave

      That is the key that either the SC didn’t grasp – or grasped but it didn’t change their perspective. When management can unilaterally change the platoon structure there is nothing left to bargain over when it comes to hours. Its not like a private sector employer like Home Depot where a decision to eliminate the third shift is disconnected to “hours”. The number of platoons IS hours.

  • David Costa

    Regardless of the decision in this case, I don’t completely understand the opposition to the 56 hour work week. I do understand that in the specific case of North Kingstown, they have such a limited number of employees, that overtime issues can create situations where firefighters work excessive hours consecutively. That could particularly be a problem for personnel assigned to EMS. But if reasonable salaries are worked out, and overtime is broken up into maybe 12 hour segments (not 24 hrs on top of a regular 24 hour shift) It seems it might be manageable. I would be interested in you and your followers thoughts on the subject.

    • CurtVarone

      Dave

      From what I have heard the firefighters continue to be willing to consider the 56 hours – but like anything it should be done in a lawful way. What the town has done is unconscionable. Even in right to work states they don’t pull stuff like this.

      NK also needs to do something about their severe understaffing. When you combine the extra hours, OT on top of 56 hours (much of which is mandatory), and severe understaffing – you have a recipe for disaster.

      • David Costa

        I can’t believe that there hasn’t been an uproar in North Kingstown. They should demand that the town council replace their town manager with someone that will work within the framework that is set out under RI Law. It is my understanding that the NK town manager has suggested he wants to go after the Union to pay back the town for their legal expenses. Talk about chutzpah! He blatantly ignored the law every step of the way, then takes a victory lap after what appears to be a rigged game.

        • CurtVarone

          Reminds me of the Christmas movie “It’s A Wonderful Life” with Jimmy Stewart… What the town pulled (and the supreme court has now condoned) is on the level of what the character Mr. Potter (Lionel Barrymore) did to try to destroy George Bailey (Jimmy Stewart)… and all George Bailey was trying to do was the right thing. It is shameful.

  • CurtVarone

    Heartbroken Wife

    It was a cold-hearted move by the town – and an equally cold-hearted ruling but the court. The word I keep coming back to is unconscionable… something we depend on the courts to prevent.

    The struggle is not over – the union still has several pending actions that may help soften the blow of this ruling. But it certainly is disheartening when the courts side with Scrooge in hurting the Bob Cratchits of the world.

  • Ukfbbuff

    Increasing my work hours from 42 Hours to 56 without compensation should come under a violation of the FLSA.

    And, particularly the 53 hours of “Straight Time” as defined but the “Specific” 3 hours of

    “True” over time worked beyond the 53 hours at Time and one-half pay.

    This issue isn’t over yet, if they can got to the Federal Court level.

    Plus, how does this impact past settlements/awards made in other agencies during this same time period or is this just based on Rhode Island and it’s Political Make Up?

    • CurtVarone

      Mike

      The FLSA does not control how much an employee makes per hour so long as it is over minimum wage. As long as the parties are above minimum wage – then what ever the workplace bargain is, the FLSA is not violated. What I mean is – if an employer LEGALLY (under state law) reduces an employees wages – there is no FLSA violation.

      Here is an example of what the town is saying using $700/week as an example: Prior to the platoon change we paid FFs $700 a week to work 42
      hours – which divides out to $16.666/hr. We have legally been allowed by the RI Supreme Court to have our firefighters work 56 hours. We do not have to negotiate this with them and because they missed the statutory deadline they cannot ask for more money. Thus they now work 56 hours a week for $700, which comes down to $12.17/hr (56 hrs straight time and 1/2 time for the 3 hours)…

      To me – that is HIGHWAY ROBBERY!!!! and I cannot fathom that our supreme court put their stamp of approval on it… but they did.

      The union does have a number of arguments to counter the town’s positions… including that they should get overtime for all hours over 42 at the $16.666 rate… but a ruling on that issue is likely years away.

      • Ukfbbuff

        That’s upsetting.

        And as we’ve seen in other jurisdictions, when it goes to appeal and they favor the Unions argument, the the City cries “poor”. And now in 2015, will try to file bankruptcy.

        I think New Orleans has a similar issue about wages for the past several years.

  • mr618

    I live in Maine, not Rhode Island, but would I be correct in guessing the politicians in North Kingston and the “justices” of the RI Court might be hard-core anti-union ultra-conservatives who want a government “small enough to drown in a bathtub”? And if that is the case, WHY do firefighters, police officers, and EMS personnel keep voting for people who screw them over time after time after time? It would seem to me that if I, as a union member, vote for Joe Glotz who has campaigned on a platform of “reining in” the unions, I deserve what I get. Jesus, guys (and gals), STOP VOTING FOR POLITICIANS WHO HATE YOU.

  • Pingback: Providence Firefighters Sue to Stop Increased Hours - Fire Law Blog()

x

Check Also

Cleveland Investigating Cheating On Promotional Exam

Cleveland officials are investigating allegations of cheating on a fire department promotional exam. The test was administered last summer to 147 members seeking promotion to lieutenant and captain.

Florida Firefighter Awarded $245k for Gender Discrimination

A federal court jury has awarded a Tampa firefighter $245,000 for sex discrimination. Tanja Vidovic was awarded the verdict last week following a four-week trial. She alleged gender discrimination, sexual harassment, and retaliation.