County Superior Court
Plaintiff: Roy D. Fowler, Esq.
Defendant: Gerard P. Cobleigh, Esq.
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).
Facts and Travel
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 (Clericals or
Clerical Unit). See Arbitrator's Decision and
Award 2; see also Joint CBA Article 4.2(B).
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 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
"(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."
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 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.
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. (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.)
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.
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 ...