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Rhode Island College v. Rhode Island Council 94, AFSCME, AFL-CIO

Superior Court of Rhode Island

May 31, 2016


         Providence County Superior Court

          For Plaintiff: Jeffrey S. Michaelson, Esq.

          For Defendant: Gerard P. Cobleigh, Esq. Carly B. Iafrate, Esq.


          MATOS, JUDGE

         Before this Court is Rhode Island College's (RIC's) motion to stay implementation of an arbitration award (Arbitration Award) and RIC's motion to vacate the same. Rhode Island Council 94, AFSCME, AFL-CIO, Local 2878 (the Union) moves to confirm the same Arbitration Award. Jurisdiction is pursuant to G.L. 1956 § 28-9-14. For the reasons set forth in this Decision, this Court grants RIC's motion to vacate the Arbitration Award; RIC's motion to stay is moot; and the Union's motion to confirm is denied.


         Facts and Travel

         RIC and the Union are parties to a collective bargaining agreement (CBA). Pursuant to the CBA, RIC may discipline employees only for just cause. See CBA, Art. 24. The CBA also provides that when the Union or an employee challenges RIC's decision to discharge an employee, the matter may be submitted to arbitration. Id., Art. 25. In this case, RIC terminated Robert Panciocco (the Grievant) following an incident at the school. The Union grieved the termination in accordance with the CBA, and it was submitted to arbitration.

         At the arbitration hearing on December 18, 2013, both the Union and RIC were represented by counsel, and the Grievant testified. While there was no formal statement of an issue before the arbitrator, the arbitrator framed the issue as: "Was the Grievant . . . terminated from his employment for just cause? And, if not, what shall be the remedy?" (RIC's Ex. A, Arbitration Award dated Jan. 17, 2014 at 3).

         The Grievant worked at RIC for thirty-one years as of July 15, 2013, the date of the incident. Id. at 6. Prior to the incident, the Grievant had a clean employment record evidencing no previous discipline. Id.

         On the date of the incident, the Grievant reported to his housekeeper duties at Whipple Hall. Id. at 7. According to the Grievant, at approximately 10:30 in the morning, he became aware that he had his .22 caliber semiautomatic pistol in his back pocket. Id. The gun was fully loaded with six rounds in the magazine and one round in the chamber. (Deputy Chief Casbarro Mem. July 22, 2013). The Grievant claimed that when he realized that he had his gun on him, he went to put the gun in his car, but he changed his mind when he saw that there were elementary school children near his car. Arbitration Award at 7. Therefore, the Grievant returned to work with the gun still in his possession. He did not make anyone at RIC aware that he had the gun on his person.

         The Grievant left work at approximately 1:20 p.m., as he had previously received permission to leave work early on that day. Id. According to the Grievant, at around 3:00 p.m. he realized that his gun was no longer in his pocket. Id. When he realized this, the Grievant thought he might have lost it in a bathroom while he was cleaning Whipple Hall.[1] Id. At that time, the Grievant, for the first time, called RIC's Safety and Security Office to report the situation. First, he spoke with the desk officer, and, fifteen minutes later, he called back and spoke with the lieutenant on duty. Id.

         RIC's Safety and Security Office dispatched an officer to Whipple Hall. The officer did not find the gun in a bathroom at Whipple Hall. Id. While continuing his search, the officer located the gun in a trash can near the front of Whipple Hall. Id. The officer brought the gun back to the campus police headquarters where it was unloaded. Id. RIC's Safety and Security Office then told the Grievant that the weapon had been found. Id.

         On July 26, 2013, the Grievant and his union representatives appeared before RIC's interim director of human resources for a pre-disciplinary hearing. Id. Following the hearing, RIC sent the Grievant a letter dated July 30, 2013 (Termination Letter); the letter informed the Grievant that RIC was terminating him effective August 1, 2013. On August 2, 2013, the Union filed a grievance on the Grievant's behalf asserting that the Grievant had not been terminated for just cause. Arbitration Award at 3, 7; see also Official Grievance Form. RIC and the Union agreed to take the grievance directly to arbitration. Arbitration Award at 8.


         The CBA and Policies on Workplace Violence

         The CBA between RIC and the Union provides for arbitration. See CBA, Art. 25-26. The Management Rights section states:

"The Union recognizes that except as specifically limited, abridged or relinquished by the terms and provisions of this agreement, all rights to manage, direct or supervise the operations of the State and the employees are vested solely in the State.
"For example, but not limited thereto, the employer shall have the exclusive rights subject to the provisions of this agreement and consistent with the applicable laws and regulations:
"A. To direct employees in the performance of the duties of their positions;
"B. To hire, promote, transfer, assign, and retain employees in positions within the bargaining units and to suspend, demote, discharge, or take other disciplinary action against such employees;
"E. To relieve employees from duties because of lack of work or for other legitimate reasons." CBA, Art. 4.

         Article 24 of the CBA discusses Discipline and Discharge of employees. It states:

"Disciplinary action may be imposed upon an employee only for just cause. Any disciplinary action imposed upon an employee may be processed as a grievance through the regular grievance procedure as outlined in Article 25 . . . Where appropriate, disciplinary action or measures shall include only the following:
"1. Oral reprimand
"2. Written Reprimand
"3. Suspension
"4. Discharge
"5. Demotion where appropriate
"When any disciplinary action is to be implemented, the Appointing Authority shall before or at the time such action is taken, notify the employee and the Union in writing of the specific reasons for such action." CBA, Art. 24.

         Immediately following its discussion of the disciplinary action that may be imposed upon employees, the CBA discusses the employee's right to grieve the imposition of said disciplinary action. If the grievance procedure is unsuccessful, then the CBA provides that the matter may proceed to arbitration.[2]

         In this case, the Grievant violated two policies on violence in the workplace: one promulgated by the State and one promulgated by the R.I. Board ...

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