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Cimalore v. Town of Westerly

United States District Court, D. Rhode Island

February 9, 2016



LINCOLN D. ALMOND, Magistrate Judge.

Pending before me for a report and recommendation (28 U.S.C. § 636(b)(1)(B); Local Rule CV 72(a)) are Plaintiffs' Motion for a Preliminary Injunction (Document No. 26) and Defendants' Motions to Dismiss this action pursuant to Rule 12(b)(6), Fed.R.Civ.P. (Document Nos. 27 and 28). A hearing was held on December 15, 2015. For the following reasons, I recommend that Plaintiffs' Motion for a Preliminary Injunction (Document No. 26) be DENIED and Defendants' Motions to Dismiss (Document Nos. 27 and 28) be DENIED.


Plaintiffs Thomas Cimalore, Anthony Falcone, Scott Ferrigno and Raymond Morrone, perform services for the Town of Westerly as part-time, nonpermanent police officers, i.e., Constables, pursuant to Section 9-1-8 of the Town's Charter.[1] Plaintiff Darrell Koza performed such services through December 4, 2014. Constables are "assigned to work private and special duty details, including special events and assignments for the Town and schools" as well as "foot patrol work, traffic control, and related police work." (Document No. 2, ¶ 26). Defendants are the Town of Westerly and its Town Manager and Director of Public Safety, Finance Director and Chief of Police, as well as Westerly Local #503, International Brotherhood of Police Officers ("Local 503"). Local 503 is the collective bargaining representative of the Town's full-time, permanent Police Officers. Local 503 does not represent the Constables.

The Town and Local 503 are parties to a collective bargaining agreement for the term July 1, 2013 to June 30, 2016 (the "CBA"). (Document No. 1-2). The CBA was signed on June 23, 2014 and contains provisions regarding the assignment and compensation of private and special-duty details. It effectively gives full-time, permanent Police Officers a right of first refusal for detail assignments before they are offered to "civilian constables." (Document No. 1-2 at p. 6). The CBA provides for a rate of $38.00 per hour for detail work and the additional charge to private entities of $4.00 per hour for an administration fee for "private details." Id. at p. 7. Finally, the CBA provides that "[f]or any private duty detail worked by a constable or reserve officer (who was not formerly a Westerly Police Officer), said reserve or constable shall make a contribution of $5.00 per hour to Local 503." Id.

Plaintiffs challenge the legality of this $5.00 per hour mandatory "contribution" and argue that it is an illegal "Forced Union Fee." Plaintiffs assert that the Town and Local 503 unlawfully began, without prior notice or lawful authorization, deducting the $5.00 per hour contribution from their pay in April 2014 as "CRSR Dues." (Document No. 2, ¶¶ 30-32). Plaintiffs contend that this compelled contribution to Local 503 violates their constitutional rights including their freedom of association under the First Amendment. (Claim One). Plaintiffs also allege that the Town unconstitutionally retaliated against them for engaging in constitutionally protected speech in opposition to the contribution by revising the system for assigning details which "reduced and limited [their] hours and pay." (Document No. 2, ¶ 82) (Claim Two). Finally, Plaintiffs allege that the deduction of the contribution and assignment to Local 503 violates Rhode Island's Payment of Wages Act (Claims Three and Four) and they bring additional state law retaliation and whistleblower claims. (Claims Five and Six).


A. Standard of Review

In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the Court construes the Complaint in the light most favorable to the plaintiff, see Greater Providence MRI Ltd. P'ship v. Med. Imaging Network of S. New England, Inc., 32 F.Supp.2d 491, 493 (D.R.I. 1998); Paradis v. Aetna Cas. & Sur. Co., 796 F.Supp. 59, 61 (D.R.I. 1992), taking all well-pleaded allegations as true and giving the plaintiff the benefit of all reasonable inferences, see Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir. 2002); Carreiro v. Rhodes Gill & Co., 68 F.3d 1443, 1446 (1st Cir. 1995); Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994). If under any theory the allegations are sufficient to state a cause of action in accordance with the law, the motion to dismiss must be denied. See Hart v. Mazur, 903 F.Supp. 277, 279 (D.R.I. 1995). While a plaintiff need not plead factual allegations in great detail, the allegations must be sufficiently precise to raise a right to relief beyond mere speculation. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (abrogating the "no set of facts" rule of Conley v. Gibson, 355 U.S. 41, 44-45 (1957)). The complaint "must allege a plausible entitlement to relief' in order to survive a motion to dismiss." Thomas v. Rhode Island, 542 F.3d 944, 948 (1st Cir. 2008) (quoting Twombly, 550 U.S. at 559).

B. Defendants' Arguments

Defendants argue that Plaintiffs' Complaint is conclusory and fails to set forth sufficient well-pleaded facts to state any claims upon which relief may be granted. (Document No. 27-1 at p. 8). In particular, they contend that Plaintiffs do not plead sufficient facts demonstrating "that they are employees; that they are being forced to associate or contribute to the Union; or that any of the contributions made to [Local 503] pursuant to the CBA are being used for political or ideological activity." Id. at pp. 10-11. Further, they contend that the challenged contributions are completely within Plaintiffs' "discretion" since they can choose not to accept private detail assignments and thus they are not being "forced" to perform any work for the Town in violation of their constitutional rights. Id. at pp. 7, 11. Finally, as to the constitutional and state law retaliation claims, Defendants contend that Plaintiffs did not engage in any protected speech, were not subject to any adverse employment, and, in any event, there are no well-pleaded factual allegations that Plaintiffs' alleged protected speech was a motivating factor in the Town's decision to revise the detail assignment system. Id. at pp. 17-19.

C. Supreme Court Precedent

In their Complaint, Plaintiffs cite to Knox v. Serv. Emps. Int'l Union, Local 1000, 132 S.Ct. 2277 (2012) ("Knox") and Chicago Teachers' Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292 (1986) ("Hudson"), in support of their constitutional claims. Both of these cases involve public-sector "agency shop" arrangements. whereby employees in a unionized workforce who are not union members must pay a service or "fair share" fee to the union as a condition of employment.[2] "[A]gency-shop arrangements in the public sector raise First Amendment concerns because they force individuals to contribute money to unions as a condition of government employment." Davenport v. Washington Educ. Ass'n, 551 U.S. 177, 181 (2007).

In Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), the Supreme Court held that a public-sector union may constitutionally charge nonmembers for collective bargaining and contract administration expenses but may not require nonmembers to fund the union's political and ideological activities. The Court recognized that the union must "fairly and equitably" represent the interests of all employees regardless of union membership and that an "agency shop" arrangement fairly allocates the cost of these activities to all who benefit, and "counteracts the incentive that employees might otherwise have to become free ...

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