Providence County Superior Court
For Plaintiff: Carly Beauvais Iafrate, Esq. Gerard P. Cobleigh, Esq.
For Defendant: Margaret L. Hogan, Esq. John B. Affleck, Esq.
Rhode Island Council 94, AFSCME, AFL-CIO, Local 2870 (Local 2870) appeals from a decision of the Rhode Island State Labor Relations Board (the Board), finding that the State of Rhode Island, Department of Health (the DOH) had not violated chapter 7 of title 28 of the R.I. General Laws, known as the Rhode Island State Labor Relations Act (the Labor Relations Act). The Board held that the DOH did not commit an Unfair Labor Practice when it permitted third-party inspectors, instead of Local 2870 inspectors, to conduct food safety inspections at Rhode Island elementary and secondary schools. Jurisdiction is pursuant to G.L. 1956 § 28-7-29.
Facts and Travel
The instant controversy stems from an unfunded federal statutory mandate known as the Child Nutrition and WIC Reauthorization Act of 2004 (the Act). (Board R., Ex. D, USDA Mem., Dec. 16, 2004.) The Act pertains to food safety inspections required in schools that participate in the National School Lunch or School Breakfast Programs. Id. Prior to the Act's reauthorization, schools were required to obtain a minimum of one food safety inspection per school year. Id. Following the reauthorization, the minimum number of inspections was raised to two per school year beginning in July of 2005. Id. The United States Department of Agriculture (the USDA) oversees the implementation of the Act, and the individual state departments of education are responsible for ensuring the inspections occur and reporting back to Congress through the USDA each year. (Board R., Ex. B, Hr'g Tr. at 133-34, Jan. 21, 2010.) In advising the departments of education about the new inspections, the USDA stated, "We encourage State agencies to contact their State and/or local agencies responsible for food safety inspections to help facilitate schools' compliance with the new requirements." (Board R., Ex. E, USDA Q&E, July 12, 2005.)
In Rhode Island, the DOH's Office of Food Protection is the state agency responsible for food safety inspections. Therefore, upon the release of the USDA Memorandum regarding implementation of the Act, multiple discussions occurred between and among the Rhode Island Department of Education (the RIDE), the DOH, represented by Dr. Ernest Julian, Director of the Office of Food Protection, and the USDA. At these meetings, the USDA agreed that the requirement for food safety inspections could be met through the utilization of third-party inspectors, instead of existing state-employed inspectors. (Board R., Ex. B, Hr'g Tr. at 137-38, Jan. 21, 2010.) The Office of Food Protection would remain involved by providing criteria for the third-party inspectors, and its staff would be called in should a third-party inspector discover a problem at a school. Id. at 141.
On March 2, 2006, Mr. Peter McWalters, the Commissioner of Education, issued a memorandum to Rhode Island school officials informing them of the new USDA food inspection requirement. Id. at 138-39. Mr. McWalters also indicated that the inspection requirement could be satisfied by the use of approved third-party inspectors at the expense of the local school districts. Id. at 141. These inspectors would be required to file electronic reports on the day of inspection and to report any imminent health hazards to the DOH, which could then send state-employed inspectors to the site. Id. at 141, 147-48.
Local 2870 is the labor organization representing health code inspectors employed by the DOH. Upon learning during a staff meeting that third-party inspectors were to be used to perform school food inspections, Local 2870 filed an Unfair Labor Practice charge with the Board in December of 2006. Local 2870 contends that the DOH had a duty to bargain with it before using non-bargaining third-party inspectors to perform food inspections at schools.
After much delay and the case being placed in abeyance at the request of Local 2870, the formal hearing in front of the Board occurred on October 15, 2009 and was completed on January 21, 2010. (Board R., Ex. A, Board Decision at 2, Oct. 12, 2011.) Representatives from both Local 2870 and the DOH were present at the hearings. Id. Doreen Beck, an Environmental Health Food Specialist, and Rosa Morales, a Senior Environmental Health Food Specialist, both from the Office of Food Protection, testified on behalf of Local 2870.
Ms. Beck testified about her work as an inspector and, in particular, regarding how inspections are prioritized based on a variety of factors. (Board R., Ex. B, Hr'g Tr. At 17-19, Oct. 15, 2009.) She maintained that even though the department had only seven inspectors, they would have been able to perform all the newly-required school inspections; the schools would have been assigned higher priority, and the Local 2870 inspectors would have done those inspections in lieu of going to other, lower-risk facilities. Id. at 26.
Ms. Morales, who is also the president of Local 2870, agreed with Ms. Beck's testimony that the use of the prioritization system would allow them to inspect all the required schools. Id. at 94. She contended that although she did not have a number, the new school inspections would not add up to 1000 as proposed by Dr. Julian. Id. at 87-88. While Ms. Morales did admit there would be 500 schools in Rhode Island that would result in 1000 inspections, she testified that not all of these schools were licensed by the Office of Food Protection, so it would not be their responsibility to perform every inspection. Id. Both parties stipulated to the fact that the DOH inspectors performed 181 school inspections in the 2005-2006 school year, and that number included reinspections. Id. at 85. Ms. Morales maintained that this number would be divided among the ten inspectors—including supervisors—resulting in eighteen inspections per person, and that the result would be not doing eighteen Dunkin' Donuts or eighteen Cumberland Farms. Id. at 94. Ms. Morales did state that the third-party inspectors do not have the same authority as the state-employed inspectors, but she testified that having read the third-party reports online, she observed that the inspectors were not reporting violations to the Office of Food Protection.Id. at 82. However, she made it clear that it was not her job to address these violations, and that the third-party supervisor, Tom Nerny, was responsible for ...