State Labor Board Rules North Kingstown Guilty of Bad Faith Bargaining

The long awaited written decision by the Rhode Island State Labor Board has been issued and it is a ringing victory for the beleaguered North Kingstown Firefighters, IAFF Local 1651, and a stinging defeat for the town. The firefighters had filed an unfair labor practice charge against the town for unilaterally increasing their hours from 42 per week to 56 per week, reducing the department from four shifts down to three, and changing shifts from 10 hour days and 14 hour nights to 24 hour shifts.

In the Board’s own words:

  • The parties commenced negotiation for a successor agreement for the 2011-2012 fiscal year … on October 28, 2011.
  • At the commencement of these negotiations, the Employer indicated that unless the Union could find a way to make a 1.2 million dollar structural cut in the upcoming CBA, then the Employer was prepared to pass an ordinance that would unilaterally change the terms and conditions of employment, including changing the shifts and increasing the total number of hours that firefighters must work each week.
  • At the initial meeting on October 28, 2011, the parties exchanged initial proposals. The Union's initial proposal for hours and wages was to remain at the forty-two hour work-week (on average), with a five percent wage increase. The Employer's initial proposal for hours and wages was to increase the work-week to fifty-six hours (on average) with no increase in wages and to re-organize the platoon structure from four platoons to three platoons.
  • At the next bargaining session on November 29, 2011, the Union proposed increasing the average work-week from forty-two hours to forty-eight hours and withdrew its request for the five percent wage increase. On December 5, 2011, the parties met again. The Union again offered a forty-eight hour work-week, for only forty-five hours of compensation, with the overtime rate to remain the same.
  • However, on December 19, 2011 the Employer delivered an ultimatum in the form of a proposed ordinance to the Union. The letter accompanying the proposed ordinance indicated for the first time that the Employer was no longer planning to bargain over the decision to change the platoon structure and hours of work, but was only willing to negotiate the "effects" of such of this decision
  • January 30, 2012, the Employer passed the proposed ordinance, with an effective date of March 11, 2012
  • On March 11, 2012, the Employer implemented the ordinance and unilaterally changed the terms and conditions of employment for the North Kingstown Firefighters, including hours and wages.
  • The duty not to effect unilateral changes in terms and conditions of employment is derived from the statutory command to bargain in good faith.
  • Employer claims that all of its participation in negotiations, including the very first meeting, was simply its efforts to "break impasse."
  • At that initial meeting, the Employer announced that it had to secure 1.2 million dollars in structural savings and that in the absence of the same, it would implement the changes that it was proposing. Indeed, less than two months later, the Employer published its proposed ordinance and set a time frame by which it would be implementing the same, all while collective bargaining, supposedly in good faith, was taking place. This arbitrary date, selected by the Employer, is evidence of its bad faith, by selecting a date at which it says definitely that "impasse" will occur. In essence, the Employer is saying, "cave to us by then, or else." This is bad faith bargaining.
  • In addition, the Employer did not introduce any evidence in the record as to why 1.2 million was the amount it "needed" to save per year in the upcoming contract.
  • The Union President testified at the first hearing on September 11, 2012 that at the first meeting, the Employer's representatives indicated that it had determined that if the firefighters went to a fifty-six hour work-week, the Employer would save 1.2 million dollars, so that was the amount of concessions they would have to have from the Union if the Union did not want a fifty-six hour work-week. … So, the "need" to save money is driven solely by its desire to secure a fifty-six hour work-week.
  • [A]n asserted inability to pay, if important enough to raise, is important enough to require some sort of proof as to its accuracy.
  • [M]aking an unsubstantiated demand for a significant wage reduction is unreasonable and evidences a refusal to enter into good-faith bargaining about wages.
  • Moreover, to claim that the parties were at "impasse" at the meeting at which bargaining proposals were first exchanged, evidences a mind-set that there was no intent to engage in good-faith bargaining. Such a mind-set is more indicative of "surface bargaining" in a predetermined effort to get to impasse; to claim justification for unilateral implementation of proposals, which, in Rhode Island, has never previously been permitted under the FFAA.
  • We find, therefore, that since the Employer's "bargaining" was tainted by bad faith, "impasse" could not occur.
  • The Employer herein has persistently and consistently tried to thwart any and all avenues of relief that the Union has sought. Regardless of what action the Union attempts, whether it is in Superior Court, before the American Arbitration Association, or before the State Labor Relations Board, the Employer springs up like a Jack-In-The-Box, squeaking "no jurisdiction, no jurisdiction." [emphasis added]  This modus operandi of treating labor relations like a chess game, in an effort to simply out-maneuver the Union from seeking relief or exercising its rights to collective bargaining, is not one that is consistent with one of the core principles or policies of the Labor Relations Act, which is to restore equality of bargaining power between and among employers and employees.
  • The hearings in this case took entirely far too long to conclude, especially when we know that the employees in this case were being forced to work twenty-four hour shifts that were unilaterally and unlawfully imposed upon them by the Employer. In addition, we believe that the Employer knew full well that it was engaging in an unlawful practice when it unilaterally changed the terms and conditions of employment and did so in an effort to "push the envelope" within the labor relations community. [emphasis added]
  • We are also concerned that despite two lengthy Superior Court decisions against it, on multiple grounds, the Employer continued to impose the unlawful terms and conditions of employment.
  • We find that there was no valid reason, either based in statute or Rhode Island case law that would cause the Town's leaders or advisors to believe with any good faith, that the firefighters here were "at the mercy of the sovereign" and that the Town possessed the unilateral right to impose its will on its employees, especially when the Town failed to avail itself of the statutory right and obligation to engage in interest arbitration on its unresolved issues.
  • The remedies that we set forth in this case are reflective of our feelings concerning the Employer's deliberate and unlawful behavior.

The Board ordered the department to:

  • immediately restore the firefighters' schedule, hours of work, and hourly rate of pay to that which existed upon the expiration of the 2010-2011 contract year
  • within sixty (60) days from the issuance of this order, to make all firefighters whole, monetarily, by paying to each and every firefighter, all wages that should have been paid at 2010-2011 regular, overtime, and holiday rates for all the hours the firefighters worked in excess of what they should have worked under the prior schedule of hours and rate of pay.
  • The funds owed to each firefighter under Paragraph 2 supra, shall bear interest at the rate of 12% per annum, running from the date of filing of this charge, to wit, June 14, 2012 through the date of payment
  • The Employer is hereby ordered to restore and then maintain the status quo on all terms and conditions of employment that existed in the 2010-2011 collective bargaining agreement, until such time as a change has either been mutually agreed to by the Employer and Union or until an interest arbitration panel's award for 2011-2012
  • The Employer is hereby ordered to cease and desist from unilaterally implementing, at any time henceforth, any changes to the wages, rates of pay, hours, working conditions, or other terms and conditions of employment of the employees represented by the Union
  • The Employer is hereby ordered to post a copy of this decision on all common area bulletin boards within its municipal buildings and on its website for a period no less than sixty (60) days; and to mail, via U.S. postal service, an actual physical copy of this decision to every firefighter employed by the Town of North Kingstown and any other employee represented by the Union in this case.

The most likely next stop for the case (absent a Christmas-Eve Scrooge-like epiphany by the elected officials of the Town of North Kingstown) is the Rhode Island Supreme Court.

Many people do not seem to realize just what is at stake when the Supreme Court gets the case. This issue is nothing less than: will there be collective bargaining for public employees or will Rhode Island return to the dark ages of labor law where politics rules, and public employees serve at the whim and pleasure of our elected officials.

What the town of North Kingstown has done in this case is befitting of the worst of right-to-work non-collective bargaining states where management rules with absolute authority. In the town's mind if it wants to increase hours or decrease wages it can do so any any time. Our legislature has specifically rejected this concept for public employees, and most specifically for firefighters.

If an employer can get away with flouting collective bargaining laws, and can unilaterally change workers wages, hours, and other terms and conditions of employment in the way North Kingstown has done, the age of public sector collective bargaining in Rhode Island will have ended.

Fortunately, that day is not today. Congratulations to IAFF Local 1651 President Ray Furtado and all the brothers and sisters in Local 1651 for staying strong – and congratulations to their legal team – Marc Gursky and Elizabeth Wiens!!! Well done!!!

Here is a copy of the decision. NKULP6088

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.

Check Also

Court Holds Military Leave Benefits Bargainable for Newark Firefighters

The Appellate Division of the New Jersey Superior Court has ruled that the City of Newark must comply with an arbitrator’s ruling requiring the city to continue military leave benefits to deployed firefighters. That ruling essentially restores the city’s past practice that was put in place after 9-11.

Houston Firefighter Sues City and Union Alleging Discrimination Over Interracial Marriage

A Houston firefighter who was accused of making a racially disparaging remark about black women, and retaliated against when it was discovered he was married to black woman, has filed suit alleging race discrimination and discrimination on account of his interracial marriage. Nicholas Dahl filed suit against the city and Houston Professional Firefighters.