COMMUNITY COLLEGE OF RHODE ISLAND, COUNCIL ON POSTSECONDARY EDUCATION and STATE OF RHODE ISLAND
CCRI EDUCATIONAL SUPPORT PROFESSIONAL ASSOCIATION/ NEARI
Appeal from Superior Court of Providence County
For Plaintiff: Jeffrey S. Michaelson, Esq.
For Defendant: John E. DeCubellis, Jr., Esq.
Petitioners-the Community College of Rhode Island, Council on Postsecondary Education and the State of Rhode Island (CCRI)-bring this motion to vacate an arbitration award rendered on November 11, 2015. The Community College of Rhode Island Educational Support Professional Association/NEARI (the Union) objects to CCRI's motion and moves to confirm the arbitration award. The Court exercises jurisdiction pursuant to G.L. 1956 § 28-9-18. This case reveals the perils of putting "the cart before the horse." CCRI did just that with respect to its employment decisions concerning the hiring of a Campus Police Officer, Michael Crenshaw (Crenshaw). Those employment decisions created a complicated set of circumstances which enabled Crenshaw to serve as a Campus Police Officer for over a year without either attending a mandatory training program or receiving a waiver from the statutory requirement that he do so. After CCRI terminated Crenshaw's employment, the Union filed a grievance, and the matter was submitted to arbitration. Ultimately, the Arbitrator ordered CCRI to restore Crenshaw to his position with compensation for lost time.
This Court is tasked with determining whether to vacate the arbitration award or to confirm it, not to rewrite it. The Court cannot confirm an award that orders CCRI to restore a Campus Police Officer to a position he would be holding in violation of a statutory requirement, a law enacted for the protection of the public. As such, the Court must find that the Arbitrator's award constitutes a manifest disregard for the law and cannot be upheld. At the outset, the grievance is not arbitrable because it arises out of the statutory qualifications for serving as a Campus Police Officer and not out of the provisions of the CBA. For the reasons set forth herein, the Court vacates the arbitration award and denies the Union's motion to confirm.
I Facts and Travel
CCRI and the Union are parties to a collective bargaining agreement (CBA), which provides for the arbitration of disputes. (CBA Article 13(A).) The CBA states that all CCRI employees are subject to a probationary period of 130 working days and supervisor evaluations every two months. (CBA Article 17(A).) The CBA differentiates between persons employed for less than 130 days who serve at the pleasure of CCRI and persons employed for more than 130 days who are entitled to due process rights. (CBA Article 17(A) and (B).) The CBA refers to the former as "probationary employees" and the latter as "employees." Id. Thus, under the CBA, prospective employees must complete a 130 day probationary period before becoming eligible for employee status. (CBA Article 17(A).) CCRI may dismiss probationary employees "for reasons related to the employee's lack of qualifications or for the good of the service" at any point within the 130 day period. Id. At the end of the probationary period, CCRI has the option to dismiss the employee or to retain his or her services. Id. If CCRI takes no actions at the end of the probationary period, then the employee "is continued" in his or her employment. Id.
The CBA further provides due process rights for persons who have achieved employee status and passed the 130 working day probationary period. The CBA provides that CCRI may only impose disciplinary actions-including oral and written reprimands, suspension, discharge and demotion-against employees who have passed the probationary period if it has just cause. (CBA Article 17(B).) In the event that CCRI imposes a disciplinary action on a non-probationary employee, it must furnish a copy of all of the employee's performance evaluations or disciplinary entries in their personnel record and allow the employee to respond. Id. Within two weeks of a demotion or suspension, the Union may file a grievance on the employee's behalf. Id. If the grievance is not settled through the regular procedure, then the parties may submit the grievance to arbitration. (CBA Article 13.) "Only grievances arising out of the provisions of [the CBA], relating to the application or interpretation thereof, may be submitted to arbitration." Id. Moreover, the CBA states that "[a]ny disciplinary action imposed upon an employee may be processed as a grievance through the regular grievance procedure" and that "[a]n arbitrator shall be empowered to change the disciplinary action if they determine that the action taken was not warranted." (CBA Article 17(B).) The CBA further provides that "disciplinary actions" include oral and written reprimands, suspension, discharge and demotion. Id.
CCRI's College Police Department (the Department) employs campus police to provide security for CCRI's four main campuses and two satellite campuses. (Arbitrator's Opinion and Award at 3.) The Department provides security for approximately 18, 000 students, and 850 faculty, staff and visitors. Id. Campus Police Officers are state classified positions and fall under the jurisdiction of the Rhode Island Merit System Law. Id. As such, Campus Police Officers must meet certain State prescribed job requirements. Id.; see also General Order. Under state law, Campus Police Officer candidates (Candidates) must receive training at the Academy while serving in a probationary capacity. See G.L. 1956 § 42-28.2-1. In addition, the Rhode Island Police Officers Commission on Standards and Training (RIPOST) has the authority to grant waivers from the Academy requirement (Waivers) to Candidates who have already received training and experience serving as law enforcement officers in other states. No Candidate for a position as a Campus Police Officer can become a permanent employee unless he or she either attends the Academy or obtains a Waiver from the statutory obligation to do so. (General Order.)
To qualify for a Waiver, Candidates must receive a conditional offer of employment from a sponsoring agency. Id. The sponsoring agency, in this case, CCRI, then submits an application for a Waiver on the applicant's behalf to the Executive Director of the Academy (the Executive Director) detailing his or her qualifications. Id. Additionally, RIPOST requires that all waiver candidates are "non-probationary officer[s] in good standing with their current police department/employer" and have completed at least twelve months of continuous active service with a single agency or department. Id. Therefore, the only applicants who can qualify for Waivers are those who are actively employed by an out-of-state police department or agency when they receive the conditional offer of employment from CCRI. See id. Moreover, Candidates seeking a Waiver must complete that process during their probationary term. See id. After the Academy Staff reviews the Waiver Application, the Executive Director notifies the sponsoring agency as to the status of the Candidate's Waiver. Id.
In July of 2013, Crenshaw applied for a position as a Campus Police Officer at CCRI. (Arbitrator's Opinion and Award at 5.) Before applying to CCRI, Crenshaw-a graduate of the Massachusetts Police Academy-had worked for the Southborough Police Department for ten years, from February 2002 to February 2012. Id.; (Ex. F.) On November 8, 2013, CCRI made Crenshaw a conditional offer of employment (the Conditional Offer). (Conditional Offer 1.) The Court notes that at the time CCRI extended the Conditional Offer to Crenshaw, he was not employed as a police officer with the Southborough Police Department. See Arbitrator's Opinion and Award at 5; Ex. F. Rather, he had been terminated from that position twenty-one months earlier. Crenshaw began his 130 day probationary period on November 17, 2013, on the date he started working as a Campus Police Officer at CCRI. Id. The offer of employment was conditioned on several requirements, to wit, that he: obtain a satisfactory score on a psychological exam; complete a fitness and medical exam; pass a background investigation; and complete the Academy. Id. The Conditional Offer explicitly stated that "the candidate will receive a final offer of employment subject to a probationary period if, and only if, each and every term and condition has been completed successfully and all contingencies are satisfied." Id.
During the probationary period, Crenshaw's supervisor gave him three high scoring evaluations, and Crenshaw completed the 130 day probationary period on May 17, 2014.(Arbitrator's Opinion and Award at 5.) On August 18, 2014, three months after the expiration of the probationary period, CCRI submitted a Waiver Application on Crenshaw's behalf. Id. at 6. After reviewing the Waiver Application, the Academy's General Counsel, Lisa Holley (Holley), sent a letter (the Holley Letter) to the Executive Director of the Academy, recommending that he deny Crenshaw's Waiver. As grounds for her recommendation, Holley noted that 1) due to the nature of his termination from the Southborough Police Department, Crenshaw might be eligible for placement in the National De-Certification Index (NDI); 2) Crenshaw had failed to list a motor vehicle violation and prior arrest on his Application; 3) Crenshaw had self-reported substance abuse and psychological problems while employed at the Southborough Police Department, which resulted in a revocation of his firearm license; and 4) Crenshaw had received a below average rating in his psychological examination. See Holley Letter.
Ultimately, Holley recommended that RIPOST deny the Waiver but stated that nothing would "preclude Officer Crenshaw from reapplying once these issues are resolved to the satisfaction of the [RIPOST]." Id. On October 21, 2014, the Executive Director of the Academy delivered the Holley Letter to CCRI. (Arbitrator's Opinion and Award at 7-8.) On October 30, 2014, CCRI notified Crenshaw that the Academy had denied his Waiver and scheduled a pre-termination hearing. See Letter from Chief Dale R. Wetherell, College Police, to Sheri Norton, ...