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State of Rhode Island Department of Corrections v. Rhode Island Probation and Parole Association

Superior Court of Rhode Island

June 22, 2016

STATE OF RHODE ISLAND DEPARTMENT OF CORRECTIONS
v.
RHODE ISLAND PROBATION AND PAROLE ASSOCIATION

         Providence County Superior Court

          For Plaintiff: Roy D. Fowler, Esq.

          For Defendant: Gerard P. Cobleigh, Esq.

          DECISION

          VOGEL, J.

         Petitioner-the State of Rhode Island Department of Corrections (DOC)-brings a Motion to Vacate an Arbitration Decision and Award rendered on April 27, 2015. Respondent- the Rhode Island Probation and Parole Association (RIPPA)-objects to the DOC's motion and moves to confirm the Arbitration Decision and Award. The Court exercises jurisdiction pursuant to G.L. 1956 § 28-9-18. For the reasons set forth in this Decision, the Court denies the DOC's Motion to Vacate and grants RIPPA's Motion to Confirm. The Court grants RIPPA's request to recover reasonable and necessary costs and attorney's fees pursuant to § 28-9-18(c).

         I. Facts and Travel

         The DOC and RIPPA are parties to a collective bargaining agreement (the Joint CBA), which provides for the arbitration of disputes. (Joint CBA Article 25.2.) The Joint CBA covers two bargaining units within the DOC: EE-3457 (Probation Officers or PO Unit) and EE-3456 (Supervisors or Supervisor Unit). See Joint CBA; Arbitrator's Decision and Award 2. The PO Unit includes the positions of Parole Coordinator; Probation and Parole Officers I-III; Case Aide Technician; Internship/Volunteer Coordinator; and Juvenile Probation and Parole Services Technician. (Joint CBA Article 4.2(A).) The Supervisor Unit includes the positions of Deputy Compact Administrator; Probation and Parole Supervisor; Executive Secretary of the Parole Board; and Senior Research Technician. Id. RIPPA represents members of the PO and Supervisor Units, as well as members of a third bargaining unit within the DOC, EE-3505[1] (Clericals or Clerical Unit). See Arbitrator's Decision and Award 2; see also Joint CBA Article 4.2(B).

         Joint CBA Article 4.2(B) sets forth a specific application structure to fill vacancies both in the Supervisor Unit and for those in the PO Unit. See Joint CBA Article 4.2(B). Specifically, as it relates to all vacancies, other than low-level Probation and Parole Officer positions, the Joint CBA Article 4.2(B) provides as follows: "[v]acant bargaining unit positions shall be filled from within the bargaining unit when there are six (6) applicants on the certified list[2] from within the bargaining units defined as EE-3456 [Supervisor Unit] and EE-3457 [PO Unit]." Id. However, in the event that there are fewer than six such employees on the certified list-or no certified list exists-Article 4.2(B) further provides that "the State will make a reasonable effort to promote from within the bargaining unit, however nothing herein shall be construed to require selection from the bargaining unit in such a case." Id. Article 4.2(B) defines a "reasonable effort" as,

"(a) Accepting applications and a conscientious review of the applicant's qualifications.
"(b) A quantitative evaluation of the applicant's total work experience, education, in-service training and any other documented preparation for positions of increased responsibility.
"(c) Relating such qualifications and experience to the official job specifications.
"(d) The character of the applicant.
"(e) The potential of the applicant to carry out the duties of the class of position.
"(f) The applicant's state seniority." Id.

         Clericals have a separate collective bargaining agreement and are not covered under the Joint CBA. (Arbitrator's Decision and Award 2.) However, Article 4.2(B) does address Clericals when outlining the procedure for filling vacancies at entry level Probation Officer positions. The Joint CBA describes the method to be followed for considering applicants for those jobs. Id.; see also Joint CBA Article 4.2(B). Specifically, the Joint CBA provides that "[v]acant Probation and Parole I positions will be filled from within the top six (6) employees on the certified list from bargaining unit EE-3505 [Clerical Unit] represented by RIPPA when there are six (6) bargaining unit employees on the list." Id. In the event that the certified list contains fewer than six employees from the Clerical Unit, Article 4.2(B) requires that the DOC "make a reasonable effort[3] to promote from within the bargaining unit." Id. In the job hierarchy, it is clear that Supervisor positions are considered higher than PO positions, and PO positions are considered higher than Clerical positions. As such, the CBA implicitly recognizes that no upper level Supervisor would apply to fill an entry level Supervisor position and no Supervisor or upper level PO would apply to fill an entry level PO position.

         In March of 2014, the DOC posted a vacancy notice for the position of Deputy Compact Administrator (DCA), a lower level position within the Supervisor Unit. (Resp't's Mem. 1.); see also Arbitrator's Decision and Award 2. The vacancy notice limited applicants to DOC employees from the Supervisor Unit, the PO Unit, and the Clerical Unit.[4] (Resp't's Mem. 2.) The DOC received six applications from members of the PO Unit and one application from a member of the Clerical Unit. (Arbitrator's Decision and Award 2.) No members from the Supervisor Unit applied. The DOC created a four-person panel (Hiring Panel) to review the seven applicants' resumes and conduct interviews. Id. at 6. Based on initial interview scores, the Hiring Panel selected two applicants for a second interview: Laura Queenan (Queenan), and Heidi DuPerry (DuPerry). Id. at 6. Prior to applying for the DCA position, Queenan had worked as a Probation Aide-a position classified in the Clerical Unit-in the DCA's Office for approximately twenty years. Id. at 5-6. However, for approximately fourteen months before the DOC posted the vacancy notice, Queenan had filled in as the acting DCA following the retirement of the individual who had previously held the position. Id. at 5. DuPerry, on the other hand, held a Bachelor's Degree in Criminal Justice and Sociology and had amassed twelve years of experience as a PO. (Resp't's Mem. 2.)

         After the second interview, the Hiring Panel selected Queenan for the DCA position. (Arbitrator's Decision and Award 6.) In making its selection, the Hiring Panel determined that Queenan was "an excellent fit" for the position as well as "the only one qualified to be appointed." Id. The Hiring Panel explained that its decision to hire Queenan was influenced by the fact that she had trained the two prior DCAs and was the "go to" person in the office. Id. In support of its decision, the Hiring Panel also noted that DuPerry had no direct experience with the office and had told the Hiring Panel that she would face a "learning curve" if she took the position. Id.

         After the Hiring Panel made its selection, RIPPA filed a class action grievance on behalf of the six members of the PO Unit, who had applied for the DCA position, against the DOC. RIPPA claimed that the DOC had violated the Joint CBA when it failed to make a "reasonable effort"-as that term is defined in the Joint CBA-to promote a member of the PO Unit to the DCA position. The DOC denied the grievance, and the matter proceeded to arbitration. At the ...


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