DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF THEIR OPPOSITION TO PLAINTIFFS PRAYER FOR DECLARATORY RELIEF

STATE OF RHODE ISLAND PROVIDENCE, SC. SUPERIOR COURT PAUL A. DOUGHTY, individually and as President of : LOCAL 799 OF THE INTERNATIONAL : ASSOCIATION OF FIREFIGHTERS, A.F.L.-C.I.O., and : LOCAL 799 OF THE INTERNATIONAL : ASSOCIATION OF FIREFIGHTERS, A.F.L.-C.I.O., : Plaintiffs, : : v. : C.A. No. PC 2015-2534 : JORGE ELORZA, in his official capacity as Mayor of the : City of Providence, THE CITY OF PROVIDENCE, by : and through its treasurer, James J. Lombardi, III, and the : PROVIDENCE FIRE DEPARTMENT, through the : Providence Commissioner of Public Safety, Steven Pare, : Defendants. : DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF THEIR OPPOSITION TO PLAINTIFFS PRAYER FOR DECLARATORY RELIEF Defendants, Jorge Elorza in his official capacity as Mayor of the City of Providence, The City of Providence by and through its treasurer James J. Lombardi, III ( City ), and The Providence Fire Department through the Providence Commissioner of Public Safety Steven Pare, submit this Memorandum of Law in Support of Their Opposition to Plaintiffs Prayer for Declaratory Relief. I. INTRODUCTION The Court has requested a preliminary description of the law underlying this case. Plaintiffs declaratory prayer, which seeks a declaration that the effects of the City s lawful unilateral reorganization of its fire department platoon structure are subject to grievance arbitration, must be denied for at least five reasons. First, our Supreme Court in Town of N. Kingstown v. Int l Ass n of Firefighters, Local 1651 AFL-CIO, 107 A.3d 304, 319-20 (R.I. 2015) ( North Kingstown ) firmly held that a municipality has a duty and a non-delegable management right to unilaterally reorganize its fire department platoon structure, and that the reorganization 1

and any necessary effects here, the necessary change from a 42-hour to 56-hour workweek cannot as a matter of law be subjected to mandatory bargaining or arbitration. Second, and relatedly, the declaratory prayer is premature because it is based on Plaintiffs June 30, 2015 demand for grievance arbitration which, by its terms, seeks only to arbitrate the non-arbitrable platoon reorganization and change in workweek hours necessary to effectuate the reorganization. Third, even assuming there is presently a valid collective bargaining agreement ( CBA ) between the parties (and as shown below, there is not), and further assuming that Plaintiffs eventually file a grievance over the implementation of the effects of the reorganization (if ongoing negotiations fail to produce an agreement), a resolution of those effects falls outside the clear and unambiguous scope of the grievance provision of the purported CBA. Fourth, although the City denies that the reorganization will affect other provisions of the purported CBA as Plaintiffs claim, North Kingstown and the seminal case of Lime Rock Fire Dist. v. R.I. State Labor Relations Bd., 673 A.2d 51 (R.I. 1996) ( Lime Rock ), squarely hold that where an employer and a firefighters union fail to reach agreement over the effects of a unilateral management change, the determination of those effects is subject if anywhere to interest arbitration only, and is not subject to grievance arbitration as Plaintiffs claim. Here, however, following the clear holdings of both North Kingstown and Lime Rock, Plaintiffs have failed to timely seek interest arbitration under the Firefighters Arbitration Act ( FFAA ), R.I. Gen. Laws 28-9.1-7 and, as a result, have irrevocably waived any right they may have had to do so. Fifth, the purported CBA on which the Union relies is void and unenforceable, as the City Council did not have the authority to ratify a five or a six year agreement under state or local law. See R.I. Gen. Laws 28-9.1-6 (firefighter contract may not extend beyond three 2

years); Providence Teachers Union v. Providence Sch. Bd., 689 A.2d 384, 388 (R.I. 1996) ( Providence Teachers Union I ) (collective bargaining agreement void and unenforceable where it was not lawfully ratified by City Council). As a result, the arbitration clause in that CBA is of no legal force or effect. See Providence Teachers Union v. Providence Sch. Bd., 689 A.2d 388 (R.I. 1997) ( Providence Teachers Union II ) (general arbitration agreement contained in public sector labor contract does not survive expiration of the labor contract). For all these reasons, Plaintiffs prayer for declaratory relief must fail. II. FACTS A. The City s Decision to Reorganize the Fire Department into Three Platoons. On May 20, 2015, the Mayor of the City of Providence, Jorge Elorza, notified Paul Doughty, President of Local 799 of the International Association of Firefighters, AFL-CIO ( Union ) by a hand-delivered letter that the City s Commissioner of Public Safety, Steven Pare, has made the decision to reorganize the City s Fire Department effective immediately and that the Mayor s Office fully supports and ratifies the Public Safety Commissioner s decision. (Exhibit A attached hereto). In the letter, the Mayor went on to explain that: As part of this reorganization, the Public Safety Commissioner has decided to organize the line firefighting and rescue personnel, including those firefighters assigned to communications, in the City s Fire Department into three divisions, effective immediately. (Id.). The Mayor described the schedule to which the three line firefighting and rescue divisions would be assigned, but he indicated that the [i]mplementation of the schedule may be suspended during good faith negotiations with [the Union] over the effects of the reorganization on firefighting and rescue personnel, but not beyond June 30, 2015. (Id.). The Mayor further explained that [i]n the absence of a different agreement regarding the effects of the 3

reorganization, the number of hours of vacation, sick, personal and other time off along with annual base salaries will not change. (Id.). He also said that the City would adhere to the federal overtime requirements as set forth in the Fair Labor Standards Act, as the City was obligated to do anyway. (Id). Finally, the Mayor concluded the letter by specifically inviting the Union to engage in collective bargaining over the effects of the reorganization on members of the Union. (Id.). B. The Union s Request to Bargain and the City s Response. On May 22, 2015, the Union President sent an email to the City s Public Safety Commissioner and the City s Fire Chief with the following subject line: Request to Bargain. (Exhibit B attached hereto). Through that email, the Union President made the following requests: (1) to bargain over the proposed change to the shift (platoon, group) structure as outlined in the recently issued general order (GO 68) ; and (2) to bargain over the implementation of the proposed change to the shift schedule as outlined in the recently issued general order (GO 68). (Id.). 1 In addition, the Union President stated: It s the union s position that both of these matters are mandatory subjects of collective bargaining and represents [sic] a violation [sic] the collective bargaining agreement currently in effect between the parties. (Exhibit B). The Union President also requested that General Order 68 be rescinded immediately. (Id.). On Friday, May 22, 2015, the Fire Chief sent an email to the Union President saying that he and the Commissioner were willing to meet the Union to discuss General Order 68. (Exhibit B). He suggested meeting on May 27, May 28 or May 29 at various times. (Id.). 1 General Order 68, dated May 21, 2015, simply states: Please be advised that the Providence Fire Department has been reorganized into a three-platoon system. The implementation of the effects of the three platoon system has been temporarily delayed as we anticipate engaging in good faith negotiations with your local union over those effects. Over the upcoming days and weeks, we will be developing policies and procedures to transition the department to the three-platoon system as smoothly and efficiently as possible. (Exhibit C attached hereto). 4

Then, on Tuesday, May 26, 2015, the Commissioner responded to the Union President by email. (Exhibit D attached hereto). In that email, the Commissioner made clear: The City is pleased to discuss the effects of its decision to implement a three platoon structure in the fire department. Please be advised, however, that the Rhode Island Supreme Court has recently held that the decision to implement [a] three platoon structure is a management right, and that this management right is not subject to mandatory bargaining and need not be submitted to arbitration. Town of North Kingstown v. Int l Ass n of Firefighters, Local 1651, 107 A.3d 304, 313-14 (R.I. 2015). In fact, the Court made clear that the City could not lawfully bargain away that management right and responsibility, even if wanted to. In accordance with Rhode Island law, the City is hereby pleased to discuss and collectively bargain the effects of its decision only. Kindly advise us of your availability over the next few days so that we can choose a mutually convenient time to meet for that discussion. (Id.). The Commissioner proposed meeting on May 27, May 28 or May 29. (Id.). The Union and the City agreed to meet on May 27, 2015. C. Bargaining over the Effects of the City s Decision to Reorganize the Fire Department into Three Platoons. The City and the Union held their first bargaining meeting over the effects of the City s decision to reorganize the Fire Department into three platoons on May 27, 2015, and they have held six additional bargaining meetings on May 29, June 11, June 29, July 1, July 13, and July 28, 2015. The City and the Union have exchanged numerous written and verbal proposals during those meetings. Those proposals involved, inter alia, changes to the existing terms of the purported CBA affected by the reorganization. For example, the parties have each proposed to change the existing salaries set forth in the purported CBA, while other proposals have sought to change the language of the purported CBA as it relates to the provision of sick and vacation leave, overtime rates of pay and platoon bidding. At the parties meeting on June 29, 2015, the City s representatives told the Union that the City had made the decision to postpone the full implementation of the effects of the 5

reorganization, and specifically the revised work schedule, until August 1, 2015, in order to provide the parties with additional time in which they might reach a different agreement through negotiations. (See Exhibit E attached hereto). The Mayor then sent the Union written notification on July 1, 2015, stating that the full implementation of the effects of the reorganization would occur on August 1, 2015, in the absence of a different agreement, and that [t]he City will also remain available to continue our good faith negotiations with [the Union] over the effects of the reorganization on [the Union s] members. (Id.). To date, the City and the Union have not reached agreement on the effects of the City s decision to reorganize the Fire Department into three platoons. To date, the Union has also not submitted a demand for interest arbitration over those effects. D. The Union s Grievance and Demand for Grievance Arbitration. On May 26, 2015, the Union s Vice President, Derek Silva, filed a written grievance with the Fire Chief ( Grievance # 05-15 ). (Exhibit F attached hereto). Within the grievance document, the Union explained its Complaint as follows: Violation of the Collective Bargaining Agreement, Articles I, II and VI, and it listed the Date of Occurrence as being 20 May 2015. (Id.). Within the Narrative of the grievance document, the Union stated: It is the position of the grievant that the Public Safety Commissioner or his designee has violated the provisions set forth most specifically in Article VI of the CBA when he reorganized the shift schedule increasing the hourly workweek. As a remedy the grievant requests that the City, including but not limited to, cease and desist from this practice, and make the affected grievant whole by reestablishing the 42 hour workweek/4 platoon shift schedule. (Id.) (emphasis added). By letter dated June 5, 2015, the Fire Chief denied Grievance # 05-15. (Exhibit G attached hereto). 6

On or about June 30, 2015, the Union filed a demand for arbitration with the American Arbitration Association. (Exhibit H attached hereto). However, rather than filing a demand for interest arbitration in accordance with the FFAA, R.I. Gen. Laws 28-9.1-7, the Union demanded grievance arbitration arising out of Grievance # 05-15. 2 In its written demand for arbitration, the Union alleges that the Commissioner violated the provisions set forth most specifically in Article VI of the CBA when he reorganized the shift schedule increasing the hourly workweek, and as a remedy, the Union seeks to require the City, including but not limited to, cease and desist from this practice, and make the affected grievant whole by reestablishing the 42 hour workweek/4 platoon shift schedule. (Id.) (emphasis added). On Friday, July 17, 2015, the City s undersigned counsel notified the American Arbitration Association that the grievance underlying the Union s June 30, 2015 demand for arbitration was substantively not arbitrable. (Exhibit I attached hereto). After receiving that notice, the AAA still appointed an arbitrator for the Union s Grievance # 05-15, and it has scheduled the arbitration hearing for December 16, 2015. (Exhibit J attached hereto). III. LEGAL ARGUMENT 3 2 As of June 30, 2015, when the Union filed its demand for arbitration with respect to Grievance # 05-15, the Union had already waived its right to interest arbitration under the FFAA. See R.I. Gen. Laws 28-9.1-7; Lime Rock, 673 A.2d at 53-54 ( Having organized pursuant to the FFAA, the union failed to exhaust its remedy under the FFAA, namely, to seek [interest] arbitration for unresolved issues. Moreover, because the union failed to comply with the provisions of 28-9.1-3(3) and 28-9.1-7 in respect to submitting unresolved issues to [interest] arbitration within the designated period, it has waived its right to pursue that remedy. ). 3 Defendants respectfully submit that the Court s present consideration and possible ruling on Plaintiffs declaratory prayer or on any of Plaintiffs claims is premature because, inter alia, Plaintiffs have not yet served process on Defendants and, thus, Defendants have not yet had the opportunity to serve an answer or responsive motion in this case. In these circumstances, a ruling on any of Plaintiffs requested relief is premature. See, e.g., Town of N. Kingstown v. Int l Ass n of Firefighters, Local 1651, AFL-CIO, 65 A.3d 480, 482 n.4 (R.I. 2014) (Order) (granting stay of trial court s order and final judgment because, inter alia, [a]t the time the hearing justice issued his decision, the union had not yet filed an answer to the town s complaint ); see also In re Stephanie B, 826 A.2d 985, 993-94 (R.I. 2003) (holding that due process considerations mandate that a court is without personal jurisdiction over a party, and cannot enter orders or judgment implicating that party s property or interests, until, inter aila, the party has been served with process). 7

A. Under North Kingstown, the City s Non-Delegable Right to Reorganize the Platoon Structure of the Fire Department, and the Resulting Necessary Change to Workweek Hours, Cannot As A Matter of Law Be Subject to Arbitration. In North Kingstown, our Supreme Court reaffirmed a municipality s settled management right to unilaterally implement certain managerial decisions including the decision to reorganize its fire department platoon structure. See North Kingstown, 107 A.3d at 312-15 ( the decision to implement the three-platoon structure is a management right of the town. ). North Kingstown involved that town s unilateral fire department platoon reorganization from four platoons to three identical to the City s reorganization here. See id. at 311-12. Although the procedural history of the case was complex, 4 relevant here is that the appeal brought by the town concerned, inter alia, the trial court s final judgment that the town s platoon reorganization, although a managerial decision not subject to bargaining or arbitration, was nevertheless unlawful because the reorganization by necessity effected changes to the firefighters workweek hours and to other terms and conditions of employment traditionally subject to mandatory bargaining and arbitration. See id. at 310-11. 5 4 That procedural history included, inter alia: (i) the union s untimely filing of two interest arbitrations concerning the parties failure to reach agreement on a collective bargaining agreement; (ii) the union filing an unfair labor practice charge with the State Labor Relations Board concerning the platoon reorganization; (iii) the union filing suit in the Superior Court for declaratory and injunctive relief regarding the reorganization; and (iv) the Town filing suit in the Superior Court also seeking declaratory and injunctive relief. See id. at 307-312. The union in that case also had filed dozens of contractual grievances and demands for arbitration challenging the implementation of the reorganization to three platoons, and litigation ensued over whether those grievances were substantively arbitrable. See Town of N. Kingstown v. N. Kingstown Firefighters, Local 1651, C.A. No. WC-2012-0542, 2012 R.I. Super. LEXIS 192, at *1 (R.I. Super. Ct. Dec. 14, 2012), aff d, in part, rev d, in part, North Kingstown, 107 A.3d 304 (R.I. 2015). 5 As the Supreme Court put it, [a]t the heart of this litigation is the town s unilateral implementation of a threeplatoon structure and the effects of that reorganization, including the change to a twenty-four hours on, forty-eight hours off schedule. Id. at 312. 8

In reversing that portion of the trial court s final judgment, the Supreme Court began by making clear not only that a municipality has an unfettered management right to unilaterally implement managerial decisions such as platoon restructuring, but also that that management right cannot be abridged or delegated, whether by contract, arbitration, or otherwise: [T]here are certain matters that may not be bargained away by a public employer. A public employer may not bargain away its statutory duties. Likewise, it is a basic rule of law that [public employers] are not at liberty to bargain away their powers and responsibilities with respect to the essence of the[ir] *** mission. Additionally, a public employer is not empowered to delegate to arbitrators *** [its] statutory obligation[s]; or decisions *** directly related to the essence of [its] *** mission. This prohibition can even hold true notwithstanding the fact that the action taken related to the employer s mission may impact something that is otherwise a mandatory subject of collective bargaining. North Kingstown, 107 A.3d at 313 (internal citations and quotation marks omitted). 6 See also Local 2334 of the Int l Ass n of Firefighters v. Town of N. Providence, C.A. No. PC-2009-6883, 2009 R.I. Super. LEXIS 159, at *14 -*20 (R.I. Super. Ct. Dec. 31, 2009) (Lanphear, J.) (hereafter, Local 2334 ) (same). The Supreme Court went on to emphasize that a municipality s management right includes the right to implement the managerial decision free from union or arbitral interference: In a related vein, it is well-established that there are certain managerial decisions, which lie at the core of entrepreneurial control over an organization. With respect to these decisions, a union should not be able to dictate to the employer because such matters are strictly within the province of management. Accordingly, the choice itself of whether or not to implement a particular management decision is not subject to mandatory bargaining and need not be submitted to arbitration. This holds true notwithstanding the fact that such a decision may have effects sometimes profound effects upon th[e] [terms and] conditions of employment. Id. at 313-14 (internal citations and quotation marks omitted). See also Local 2334, 2012 R.I. 6 In reaffirming that a municipality s management right is absolute and cannot be delegated or diminished by contract, arbitration, or otherwise, the Supreme Court relied on its own precedent in Vose v. R.I. Bhd. of Corr. Officers, 587 A.2d 913, 915 (R.I. 1991), N. Providence Sch. Comm. v. N. Providence Fed n of Teachers, 945 A.2d 339, 347 (R.I. 2008), and State, Dep t of Mental Health, Retardation, and Hosps. v. R.I. Council 94, A.F.S.C.M.E. AFL-CIO, 692 A.2d 318, 324 (R.I. 1997). See North Kingstown, 107 A.3d at 313. 9

Super. LEXIS 159 at* ( decisions that are purely managerial are not mandatory subjects of negotiation or arbitration. ). The Court also found support from several sister states that have held, inter alia, department reorganizations to be management rights falling outside the scope of collective bargaining. Id. at 314-15. 7 The National Labor Relations Board has similarly held that such managerial decisions may not be subject to mandatory bargaining. See, e.g., Odebrecht Contractors of California, Inc., 324 NLRB 396, 396-97 (1997) (decision to change schedule and eliminate shift was not a mandatory subject of bargaining). 8 Thus, in North Kingstown, the Supreme Court reaffirmed two bedrock principles regarding a municipality s management right to reorganize its fire department: first, the right is absolute and non-delegable and, therefore, cannot be limited by contract, arbitration, or otherwise; and second, even if the implementation of a managerial decision by necessity changes one or more terms and conditions of employment normally deemed a subject of bargaining, those changes like the implementation itself are not subject to bargaining or arbitration, since a contrary result would impermissibly encroach on the municipality s ability to exercise that management right. As the underlying facts in the present case are nearly identical in all material respects to those in North Kingstown, the same result must obtain here, and Plaintiffs declaratory prayer (as well as Plaintiffs other claims) must be denied. The City like the town in North Kingstown 7 See, e.g., State ex rel. Quiring v. Board of Education of Independent School District No. 173, Mountain Lake, Minnesota, 623 N.W.2d 634, 640 (Minn. Ct. App. 2001) (holding that reorganization of organizational structure is a matter of inherent managerial policy that does not require negotiations with bargaining units); Appeal of International Association of Firefighters, AFL-CIO Local 1088, 123 N.H. 404, 462 A.2d 98, 100 (N.H. 1983) (upholding determination that alteration of fire department's "platoon size was a subject falling solely within management discretion"); Borough of Atlantic Highlands v. Atlantic Highlands PBA Local 242, 192 N.J. Super. 71, 469 A.2d 80, 85 (N.J. Super. Ct. App. Div. 1983), certif. den., 96 N.J. 293, 475 A.2d 588 (N.J. 1984) (holding that, based on particular facts, "issue of shift changes is nonnegotiable"). 8 [W]ith respect to labor law issues, th[e Supreme] Court has frequently looked to the voluminous body of federal case law for guidance. North Kingstown, 107 A.3d at 313 (quoting Town of Burrillville, 921 A.2d at 120). 10

accomplished the platoon reorganization pursuant to its authority, granted to the Commissioner of Public Safety by the City s Home Rule Charter, to organize and control fire department officers and personnel. 9 As in North Kingstown, the City s Home Rule Charter was also ratified by the General Assembly making it a special law of the state. P.L. 1981, ch. 37. 10 In a valid exercise of that authority, the City on May 20, 2015 reorganized the fire department s platoon structure from four platoons to three, identical to the reorganization in North Kingstown. As the City s platoon reorganization constituted a lawful exercise of a non-delegable management right, the reorganization, as a matter of law, cannot be the subject of mandatory bargaining or arbitration. See North Kingstown, 107 A.3d at 312-15. Therefore, Plaintiffs declaratory prayer which is based on the June 30, 2015 grievance arbitration demand seeking only to arbitrate the City s reorganiz[ation] [of] the shift schedule increasing the hourly workweek, and limits the relief sought to reestablishing the 42 hour workweek/4 platoon schedule must be denied. 11 Similarly, to the extent Plaintiffs seek a declaration that the platoon reorganization 9 The reorganization was accomplished by the City s Commissioner of Public Safety, Defendant Mr. Pare, who, under Section 1001(b) of the City s Home Rule Charter, is [t]he head of the fire department and h[as] the authority to appoint, remove, organize and control the officers and personnel of the fire department and all other attaches thereof, subject to applicable personnel rules[.] City of Providence Home Rule Charter ( Charter ) 1001(b); see also id. at 905(m) (exempting firemen under the jurisdiction of the department of public safety from the City s personnel system). As stated in Mayor Elorza s May 20, 2015 letter to Union President Doughty, the City of Providence Public Safety Commissioner has made the decision to reorganize the City s Fire Department effective immediately and [t]he Mayor s Office fully supports and ratifies the Public Safety Commissioner s decision. (Exhibit A). 10 In Providence Teachers Union I, the Supreme Court recognized that [t]he Providence Home Rule Charter was ratified by the General Assembly in P.L. 1981, ch. 37. 689 A.2d at 386, fn. 2. The Court went on to find that the General Assembly s Ratification Act, P.L. 1981, ch. 37, repealed all General Assembly acts and parts of acts pertaining to the city of Providence that were inconsistent with the Providence Home Rule Charter provisions. Id. at 388. Thus, the Court held, if there was any conflict or inconsistency between the earlier enacted general labor laws at issue in that case and the later enacted Home Rule Charter, the Charter certainly trumps the general labor laws insofar as they have application to the city of Providence. Id. (emphasis added); see also Johnston v. Santilli, 892 A.2d 123, 129 (R.I. 2006) (a legislatively ratified home rule charter is a "a special act [that] takes precedence over any inconsistent provisions of the general laws.") (citations omitted). 11 Plaintiffs have admitted in their Motion to Compel that their grievance arbitration demand is limited to the platoon reorganization and change in hours. See Mot. to Compel at 2 ( The subject of the grievance reflected in the June 30 demand is the switch to three platoons and the change in the 42 hour contractually-specified workweek threatened by the City ). 11

violates the purported CBA s 42-hour workweek provision, its prayer must also be denied. As the Supreme Court recognized in North Kingstown, implementation of managerial decisions may have effects sometimes profound effects upon th[e] [terms and conditions] of employment, and when those effects necessarily include a change to employees hours of work set out in a collective bargaining agreement, that change is not subject to arbitration regardless of the contract s workweek hours provision. North Kingstown, 107 A.3d at 313 (internal citations and quotation marks omitted). Among the authorities the Supreme Court relied on was Vose, 587 A.2d at 915-16, which held that a CBA provision barring a department director from ordering mandatory overtime a managerial decision necessary to carry out the director s statutory duties was illegal and invalid because it is an improper attempt to contractually restrict the director s statutory powers. 12 A contrary holding here for example, that the purported CBA s 42-hour workweek provision controls, and/or that the necessary change to a 56-hour workweek is subject to arbitration would impermissibly curtail the City s ability to exercise its management right and delegate the City s non-delegable authority to the Union (or to an arbitrator, as Plaintiffs seek to do) in direct violation of North Kingstown and the binding authority cited therein. 13 See also 12 Plaintiffs attempt to rely on the purported CBA s management rights clause, in which the City retains all rights and responsibilities granted by law to manage, control and direct its Fire Department except as specifically provided herein[,] see CBA Art. II, for its contention that the City s absolute right to implement management decisions is curtailed by the CBA. Mot. at 14-15. Plaintiffs argument fails because, under North Kingstown and, inter alia, Vose, the City s management right cannot be restricted by contract. See North Kingstown, 107 A.3d at 315; Vose, 587 A.2d at 915-16. As a result, to the extent Article II is read to curtail the City s management right, that provision is illegal and void ab initio. See id. Moreover, to the extent that Article II is read to conflict with the City s rights under its Home Rule Charter, which, inter alia, vests the Commissioner with the authority to appoint, remove, organize and control the officers and personnel of the fire department, City of Providence Home Rule Charter 1001(b), then Article II must give way to the Charter. See Providence Teachers Union I, 689 A.2d at 388 (finding that Charter certainly trumps conflicting general laws); see also Santilli, 892 A.2d at 129. 13 That workweek hours must by necessity be changed in order to effectuate the City s lawful platoon reorganization is undisputed. Plaintiffs Motion to Compel Grievance Arbitration Under Collective Bargaining Agreement ( Motion to Compel ), filed in this matter on July 20, 2015, acknowledges that [b]y necessity, if the City were to switch to a three-platoon structure, the hours worked in a week would be dramatically increased. See Mot. to Compel at 3. 12

Providence Hosp. v. NLRB, 93 F.3d 1012, 1018 (1st Cir. 1996) ( [the union] had no right... to veto the decision to merge... ); accord Intern. Ass n. of Machinists & Aerospace Workers v. Northeast Airlines, Inc., 473 F.2d 549, 558 (1st Cir. 1972). 14 In sum, under the clear and binding precedent of North Kingstown, the City s unilateral platoon restructuring was a lawful exercise of the City s management right that cannot be subject to mandatory bargaining or arbitration. As a result, Plaintiffs declaratory prayer must be denied. B. Plaintiffs Declaratory Prayer is Premature Because It Is Based on Grievance # 05-15 and the June 30 Arbitration Demand Seeking Only to Arbitrate the Non- Arbitrable Platoon Reorganization and Necessary Change to Workweek Hours. Equally fatal to Plaintiffs declaratory judgment prayer is that it is based on Plaintiffs June 30, 2015 arbitration demand, which seeks to arbitrate matters namely, the platoon reorganization and the change to workweek hours necessary to effectuate the reorganization that North Kingstown and the authorities cited therein held are not arbitrable as a matter of law. Indeed, the arbitration demand states: Claim Description It is the position of the grievant that the Public Safety Commissioner or his designee has violated the provisions set forth most specifically in Article VI of the CBA when he reorganized the shift schedule increasing the hourly workweek. As remedy (sic) the grievant requests that the City, including but not limited to (sic), cease and desist from this practice, and make the affected grievant whole by reestablishing the 42 hour workweek/4 platoon shift schedule. (Exhibit H). Thus, the arbitration demand drafted by Plaintiffs expressly seeks only to arbitrate the reorganized [] shift schedule increasing the hourly workweek, and limits the relief 14 Northeast Airlines, Inc. involved a proposed merger of two airlines and a request to bargain over the effects of that decision by a union of one of the merging companies. Although the Court recognized a potential right to engage in effects bargaining in such a circumstance under the Railway Labor Act, 45 U.S.C. 151 et seq., it emphasized the following limitation on such effects bargaining: To allow the Union to force a company to bargain about the effects of its management decisions to the extent of forcing it to forego the proposed change in operations would be in effect to take away from it the freedom to make the decision in the first place. We have no doubt but that an employer, bargaining about the effect of a relocation on employment conditions, could refuse to discuss as unreasonable any labor protective terms that would make it prohibitively expensive to move. Id. at 558. 13

sought to a decision requiring the City to reestablish[] the 42 hour workweek/4 platoon shift schedule. (Id.). Grievance # 05-15 similarly challenges the Commissioner s decision to reorganize[] the shift schedule, and seeks to reestablish[] the 42 hour workweek/4 platoon shift schedule. (Exhibit F). As thoroughly set out in Section III.A. supra, North Kingstown makes clear that these are precisely the matters that may not be subject to either interest or grievance arbitration because the platoon reorganization and necessary change in workweek hours fall squarely within the City s absolute and non-delegable management right. See North Kingstown, 107 A.3d at 313-14 (holding that the decision to implement a three-platoon structure and resulting change to workweek hours is a management right that is not subject to mandatory bargaining and need not be submitted to arbitration ); accord R.I. Council 94, 692 A.2d at 324-25 (holding that department director s implementation of managerial decision to limit the number of consecutive shifts union employees could work was not subject to arbitration because director could not delegate to arbitrators the department s statutory obligation to protect its patients safety). As a result, even assuming Plaintiffs are entitled to seek grievance arbitration over the reorganization s effects (and as shown below, they are not), the matters on which Plaintiffs have sought arbitration are, as a matter of law, not arbitrable. See N. Kingstown Sch. Comm. v. Crouch, 808 A.2d 1074, 1078 (R.I. 2002) (substantive arbitrability is a matter for judicial determination ). Because Plaintiffs declaratory prayer is founded on an arbitration demand that seeks to arbitrate a dispute that is not arbitrable, the declaratory prayer must be denied. See id. ("an arbitrator is powerless to arbitrate that which is not arbitrable in the first place.") (internal quotations and citation omitted). 14

C. Even Assuming a Valid CBA Exists and Assuming Further that Plaintiffs Subsequently File a Grievance Over the Effects of the Reorganization, Resolution of Those Effects Falls Outside the Scope of the CBA s Grievance Dispute Clause. In their Brief, Plaintiffs wrongly assert that, to the extent the platoon reorganization affects terms and conditions of employment other than workweek hours, resolution of those effects falls within the scope of the purported CBA s grievance provision. An examination of the grievance provision and settled law, however, shows the opposite to be true. Thus, because Plaintiffs declaratory prayer seeks a declaration that the effects of the reorganization are subject to grievance arbitration, their declaratory prayer fails as a matter of law. It is black-letter law that grievance arbitration is a purely a contractual right, and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Crouch, 808 A.2d at 1078 (quoting AT&T Technologies, Inc. v. Comm. Workers of America, 475 U.S. 643, 648 (1986)). Thus, [n]o one is under a duty to arbitrate unless with clear language he [or she] has agreed to do so. Sacco v. Cranston Sch. Dep t, 53 A.3d 147, 150 (R.I. 2012) (citations omitted). In other words, an arbitrator is powerless to arbitrate that which is not arbitrable in the first place. Crouch, 808 A.2d at 1078 (quoting State Dept. of Children, Youth and Families v. R.I. Council 94, AFSCME, AFL-CIO, 713 A.2d 1250, 1253-54 (R.I. 1998)). In determining whether a dispute is arbitrable under a grievance provision contained in a collective bargaining agreement, the Courts look to [w]hether [the] particular collective bargaining agreement contains clear language creating a duty to arbitrate [the] particular dispute[.] Sacco, 53 A.3d at 150 (citations omitted). This is a judicial determination. Id. In the absence of clear language in the CBA providing that plaintiffs... have a right to submit grievances to the arbitration and grievance procedures, no such right will be read into the contract. Id. Indeed, the Courts must determine whether there is an express agreement to 15

arbitrate the alleged dispute, and that express agreement must be clearly and unambiguously set forth in the CBA. Id. (citing Crouch, 808 A.2d at 1079). In the absence of such an express agreement, the dispute is not arbitrable. See, e.g., id. ( we cannot clearly and unambiguously discern any provision in the CBA specifying that coaches are entitled to the grievance procedures afforded to teachers by Article VI of the CBA. ); Crouch, 808 A.2d at 1079 (CBA did not clearly and unambiguously provide[] for the arbitration of disputes relating to the dismissal of a tenured teacher for cause. ); City of Providence v. R.I. Laborers Dist. Council, Local Union 1033, R.I. Super. LEXIS 172, *32 (R.I. Super. Nov. 15, 2012) ( Local Union 1033) (Procaccini, J.) (finding collateral side agreement was not clearly covered by the express terms of the CBA s grievance and arbitration clause). The relevant portion of the purported CBA s grievance provision states: ARTICLE XVI Section 1 Grievance Procedure Alleged grievances of the members of the bargaining unit in respect to wages, rates of pay or other terms and conditions of employment arising under this contract or in connection with the interpretation thereof shall be handled in accordance with the following grievance procedures[.] [emphasis added] Moreover, the purported CBA s arbitration clause contains the following express limitation on an arbitrator s authority: the arbitrator shall not have the power to add to or subtract from the terms and conditions of this agreement. Looking at this grievance and arbitration provision of the purported CBA, it is clear that the parties did not expressly agree through clear and unambiguous language to arbitrate a resolution of the effects negotiations arising out of the implementation of a lawful management right. To the contrary, the parties agreed to arbitrate only those disputes arising under this contract or in connection with the interpretation [of this contract]. In other words, the parties 16

expressly limited the grievance provision s application to an interpretation of the lawful provisions of the CBA itself. See Local Union 1033, 2012 R.I. Super. LEXIS 172, at* 24 ( [i]f the parties intended arbitration for any agreement between themselves, the authority of the arbitrator would not have been limited to the CBA itself. ) (emphasis added) (quoting USW, AFL-CIO-CLC v. Duluth Clinic, Ltd., 413 F.3d 786, 789 (8th Cir. 2005)). The Union, however, is not seeking an interpretation of this contract. Instead, it is seeking (1) to challenge the City s lawful exercise of its management right to reorganize the fire department and (2) to resolve unresolved collective bargaining issues arising out of the parties negotiation over the effects of that management right. The former is not arbitrable as a matter of law, for the reasons discussed supra at III(A)-(B). See North Kingstown, 107 A.3d at 312-15. The latter is also not arbitrable because it involves terms either that are not included in the CBA or that will be added to the CBA as a result of the City s exercise and implementation of its management right. For example, in the parties effects negotiations, they each are proposing a change to firefighters salaries set forth in the CBA as a result of the increased scheduled hours of work necessary to effectuate the reorganization. Other proposals have sought to change the language of the purported CBA as it relates to the provision of sick and vacation leave, overtime rates of pay and platoon bidding. Indeed, the whole purpose of the effects negotiation is to add to the CBA, to the extent necessary, so that the parties know what happens in the wake of a lawful unilateral change. The parties have not expressly authorized an arbitrator to accomplish this task. Instead, the parties have clearly and unambiguously limited an arbitrator s authority through their express agreement that the arbitrator shall not have the power to add to or subtract from the terms and conditions of this agreement. 17

To the extent that the collective bargaining agreement purports to dictate exercise of or restraint of a statutory power or duty, it is unlawful, and that provision is void. See Vose, 587 A.2d at 915-16. So, as to the decision, and terms necessary to implement the decision, any collective bargaining agreement term is void and unenforceable at arbitration. That is all that the grievance encompasses. Thus, it is not arbitrable. As to effects that flow from the change, those are subject to a duty to bargain. But, unless the collective bargaining agreement expressly contemplates submission of disagreements over effects of lawful unilateral changes to grievance arbitration, they are not arbitrable. See Sacco, 53 A.3d at 150 ( [n]o one is under a duty to arbitrate unless with clear language he [or she] has agreed to do so. )(citation omitted). Under North Kingstown, those effects are subject to the duty to bargain, and in an appropriate case may be subject to interest arbitration. They are not subject to grievance arbitration because the issues are not defined by a contract until and unless the parties reach agreement or an interest arbitrator fixes the terms of a contract. That is because grievance arbitration only arises when the parties have agreed to arbitrate under a contract. See id. An understanding of the difference between grievance and interest arbitration, and what is at issue in a so-called effects negotiation and/or arbitration, is essential to this point. Interest arbitration concerns arbitration to set the terms of a collective-bargaining agreement. Grievance arbitration refers to the resolution of grievances arising under an existing agreement. City of Pawtucket v. Lodge No. 4, Fraternal Order of Police, 545 A.2d 499, 500 n.1 (R.I. 1988) (citation omitted). As one arbitrator further explained, quoting Michigan s Supreme Court: Grievance arbitration concerns disputes arising under written agreements negotiated and agreed upon by the parties. In grievance arbitration, the labor arbitrator acts in a judicial or quasi-judicial capacity. He [or she] determines the facts and seeks an interpretation of the agreement in accord with the 18

understanding of the parties as gleaned from the writing and the relationship. In interest arbitration, the functions and prerogatives of the arbitrator are significantly different. He [or she] is not bound by the agreement or understanding of the parties. He [or she] does not interpret a contract, he [or she] makes one [and] then imposes his [or her] concept of what the agreement ought to be on the parties. 2011 AAA LEXIS 691 at *14-*15 (Arbitrator Block) (emphasis added), quoting Dearborn Fire Fighters Union v. City of Dearborn, 231 N.W.2d 226, 234 (Mich. 1975). Grievance arbitration, thus, serves to address disputes over alleged breaches of a collective bargaining agreement, while interest arbitration sets the terms of the collective bargaining agreement when the parties, after bargaining over the terms, are unable to reach agreement. With this distinction in mind, it becomes clear that unresolved issues over the effects of the implementation of a managerial decision are not subject to grievance arbitration as Plaintiffs claim. As noted above, a municipality s absolute right to implement managerial decisions cannot be delegated or limited by contract or arbitration. Any CBA provision that purports to do so is void. See Rhode Island Laborers Dist. Council v. State, 592 A.2d 144, 146 (R.I. 1991) ( there are limits to the extent that a statutory power and responsibility may be bargained away in a labor contract. ); see, e.g., id. (invalidating contractual limitation on Chief Judge s authority to discharge employees); Vose, 587 A.2d at 915 (the CBA s restriction on involuntary mandatory overtime is invalid because it is an improper attempt to contractually restrict the director s statutory powers. ) (citation omitted). In the case of the City s platoon reorganization, this means that, (a) any CBA provision that would impede a municipality in the exercise of its right to reorganize is void as a matter of law, and therefore not subject to grievance arbitration, see id., and (b) to the extent the reorganization may impact terms and conditions of employment other than those necessary to effectuate the reorganization, those effects are subject to a mandatory duty to bargain under the 19

FFAA. See North Kingstown, 107 A.3d at 315. If, as North Kingstown holds, they are mandatory subjects for bargaining, then a fortiori, they are not issues that are already fixed by a CBA. Thus, absent an express agreement by the parties that they will submit to arbitration disputes over the effects flowing from a lawful decision to reorganize, such disputes are not arbitrable. See Sacco, 53 A.3d at 150. Here, there is no such agreement to arbitrate disputes over a failure to reach agreement on the effects arising from reorganization. There is only agreement to arbitrate disputes arising under this contract. The contrary holding urged by Plaintiffs namely, that the City, by exercising its absolute right to implement a managerial decision, can nevertheless be held to have breached the CBA s terms, and through grievance arbitration can be ordered to alter or rescind the platoon reorganization is directly contrary to North Kingstown because it (1) imposes an impermissible contractual limitation on the City s management right and (2) impermissibly delegates the management right to an arbitrator. Because North Kingstown requires that the purported CBA yield to the City s absolute management right, and that any CBA terms affected by the reorganization must either be changed unilaterally to accommodate the reorganization or else opened for mandatory bargaining, a dispute over those effects plainly falls outside of the CBA s grievance provision. Again, the grievance provision is limited to disputes arising under this contract or in connection with the interpretation thereof in other words, disputes where the City has allegedly violated the CBA s lawful terms. But the grievance provision does not encompass disputes over changes outside the four corners of the CBA. Especially, it does not call for arbitration of what the contract might be in the wake of a lawful reorganization. If those disputes are subject to resolution, they are subject to interest arbitration only. See City of Pawtucket, 545 A.2d at 500 20

n.1 ( [i]nterest arbitration concerns arbitration to set the terms of a collective-bargaining agreement ); 2011 AAA LEXIS 691 at *15 (interest arbitrator does not interpret a contract, he [or she] makes one then imposes his [or her] concept of what the agreement ought to be on the parties ). 15 No grievance arbitrator has the power to resolve disputes arising out of failed negotiations over changes to terms and conditions of employment, unless the parties expressly so provide. In sum, although the Union s grievance does not allege that the platoon reorganization affects Plaintiffs terms and conditions of employment beyond the increase in workweek hours that is necessary to implementation of a 3-platoon system, even if other terms and conditions are impacted, the resolution of those effects is subject to negotiation, and, if anything, to interest arbitration. Thus, Plaintiffs prayer seeking a contrary declaration must be denied. As more fully explained below, that conclusion is firmly established by North Kingstown, which follows Lime Rock, 673 A.2d 51. In both decisions, the Supreme Court held that a firefighters union s sole and exclusive mechanism for resolving disputes over the effects of a lawful, unilateral managerial decision is interest arbitration. D. North Kingstown and Lime Rock Mandate That Disputes Over the Effects of a Unilateral Managerial Decision Are Subject to Interest Arbitration Only In addition to establishing a municipality s absolute management right to implement certain managerial decisions, North Kingstown also holds that the effects of the implementation of a management decision are subject to mandatory bargaining under the FFAA. If such bargaining fails to yield an agreement, unresolved issues may be resolved if anywhere only through interest arbitration under the FFAA, provided the union timely demands bargaining and 15 Of course, the Union must timely comply with the FFAA s strict time limitations, or it risks waiving its exclusive statutory remedy. See North Kingstown, 107 A.3d at 316-19; see also Town of Burrillville, 921 A.2d at 120 (police union waived mid-contract bargaining over implementation of a management right). 21

arbitration. See North Kingstown, 107 A.3d at 315-320 (noting that the effects of that decision [to implement the platoon reorganization] are subject to the FFAA s bargaining requirements but that, because the union failed, inter alia, to timely demand interest arbitration, the union waived its right to arbitrate those effects); Lime Rock, 673 A.2d at 53-54 ( the specific mechanism for resolving disputes under the FFAA is through [interest] arbitration provided that a timely demand is submitted, citing R.I. Gen. Laws 28-9.1-7); see also Town of Burrillville, 921 A.2d at 120 (police union waived mid-contract bargaining and arbitration over management s unilateral change to terms and conditions of employment by failing to timely request bargaining). In North Kingstown, the Supreme Court stated: 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. Additionally, the town may not be compelled to submit the decision itself to interest arbitration. Nonetheless, provided that the union timely 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. Similarly, provided that the union complies with the FFAA s requirements and makes timely requests, the union may submit unresolved issues regarding the effects of the town s decision to interest arbitration. See 28-9.1-3(3); 28-9.1-6; 28-9.1-7; 28-9.1-13; 28-9.1-17. Id. at 318 (internal citations omitted). Thus, the Supreme Court, in plain language, has held that such effects are subject to interest arbitration only, as that is the specific mechanism for resolving bargaining disputes under the FFAA. See id.; see also Lime Rock, 673 A.2d at 53-54. The Supreme Court reached the same result in Lime Rock. There, a fire district unilaterally made the decision to lay off all six full-time firefighters all union members and subsequently hired new call firefighters. Lime Rock, 673 A.2d at 52. The union timely requested collective bargaining, but stopped negotiating once the fire district had implemented its reorganization. See id. at 52. Following the failed negotiations, the union, rather than timely 22