County Superior Court
Plaintiff: Robert P. Brooks, Esq.; Julie A. Sacks, Esq.
Defendant: Bernard P. Healy, Esq.; Joseph F. Rodgers III,
J., MAGISTRATE JUSTICE
present matter is before this Court on National Grid's
(National Grid) appeal from an administrative decision (the
Decision) of the Department of Labor and Training (the DLT).
The DLT required National Grid to pay its employees the
difference between what they were paid on Sundays and
holidays and the statutory premium pay, plus a 25% penalty of
the amount due to each employee. Jurisdiction is pursuant to
G.L. 1956 § 42-35-15. For the reasons set forth in this
decision, this Court affirms the Decision of the DLT.
facts of this case are undisputed. The Utility Workers Union
of America, Local 310 and Local 310B Brotherhood of Utility
Workers Council, AFL-CIO (Local 310 and Local 310B or,
collectively, the Union) are bargaining agents for National
Grid employees in Rhode Island. (Stipulation of Facts ¶
1, App. Ex. B.) The employees are hourly and non-supervisory,
and they are not exempt from the definition of
"employee" in G.L. 1956 §
25-3-1(3). Id. at ¶ 2. National Grid is
a public utility that provides customers with electricity and
natural gas. Id. at ¶ 7. As a public utility
that operates in the state, National Grid is subject to Rhode
Island laws and regulations. Id. at ¶ 3.
National Grid is also subject to federal law and is regulated
by the Rhode Island Public Utilities Commission (PUC).
Id. at ¶¶ 5, 6.
National Grid provides service to its customers 24 hours a
day, it ceases regular business operations on Sundays and all
Rhode Island holidays, except Columbus Day. Id. at
¶ 11. On Sundays and holidays, a few National Grid
employees work in the event that customers need assistance.
to § 25-3-1(5), Rhode Island holidays are as follows:
New Year's Day; Memorial Day; July 4th; Victory Day;
Labor Day; Columbus Day; Veterans' Day; Thanksgiving; and
Christmas. Id. at ¶ 10. On those holidays,
Rhode Island law provides that employers must pay employees
who work one and one-half times their normal pay rate.
Grid has a valid Collective Bargaining Agreement (CBA) with
both Local 310 and Local 310B. Id. at ¶ 12.
Under the Local 310 CBA, employees regularly scheduled for a
Sunday are paid twenty-five (25%) percent of their base
hourly rate for each hour they work, in addition to their
base pay. Id. at ¶ 13. Local 310 employees that
work overtime on Sundays are paid double time for each hour
they work. Id. at ¶ 14. Under the Local 310B
CBA, employees regularly scheduled for a Sunday are paid
thirty (30%) percent of their base hourly rate for each hour
they work, in addition to their base pay. Id. at
¶ 15. Local 310B employees that work overtime on Sundays
are paid one and one-half times for each hour they work.
Id. at ¶ 16.
the CBAs' provisions, members of both Local 310 and Local
310B who are regularly scheduled to work on state
holidays-with the exception of Columbus Day-are paid at least
one and one-half times their hourly rate for each hour worked
on that holiday. Id. at ¶ 17. Under both the
Local 310 CBA and the Local 310B CBA, employees regularly
scheduled for a state holiday are paid one and one-half times
their base hourly rate for all hours they work. Id.
at ¶¶ 18, 19. Members of both unions that work
overtime on a holiday are paid two and one-half times their
hourly rate for each hour they work. Id.
May 12, 2003, National Grid treated Columbus Day like other
state holidays, and employees working that day received the
holiday pay rate. Id. at ¶¶ 20, 21.
However, since then, the CBAs of both unions have recognized
Columbus Day as a floating holiday, and National Grid treats
the holiday as a typical business day. Id. at ¶
22. Both parties agree "that with the exception of
Columbus Day, all employees from both locals, who are
scheduled to work on the state holiday are paid at least one
and one-half (1 ½) times their normal wages for hours
worked on those days." (Decision 3, App. Ex A.)
1998, the Rhode Island Work Permits on Holidays and Sundays
Statute was amended. (Stipulation of Facts ¶ 25, App.
Ex. B.) Prior to 1998, the law forbid employers to require
employees to work on Sundays and holidays, unless it was
absolutely necessary or the employer had a permit from the
DLT for cases of economic necessity. Id.;
see P.L. 1976, ch. 110, § 25-3-2. As a result of
the 1998 amendments, the statute no longer requires that the
work be absolutely necessary, nor does it require employers
to secure a work permit. (Stipulation of Facts ¶ 26,
App. Ex. B); see R.I. Pub. Laws 1998, ch. 73.
Consequently, § 25-3-3 (the Sunday and Holiday Pay
Statute) requires that employees be paid time and one-half
for work on Sundays and holidays, with limited exceptions.
(Stipulation of Facts ¶ 28, App. Ex. B); § 25-3-3.
Sunday and Holiday Pay Statute also continued to provide that
the DLT Director would have the power to promulgate
regulations in conjunction with the statute, and to allow the
DLT Director to exempt any employer from the statute because
of its operations or size, by the adoption of such
regulations. (Stipulation of Facts ¶¶ 29, 30, App.
Ex. B); see §§ 25-3-6, 25-3-7. Some of the
pre-amendment regulations promulgated by the DLT remained on
file even after the amendments to the Sunday and Holiday Pay
Statute were passed. (Stipulation of Facts ¶ 35, App.
Ex. B.) One such regulation-promulgated before the 1998
amendments-included public utility companies as one of the
employers considered "absolutely necessary" for
purposes of the statute. Id. at ¶¶ 31, 35.
pre-amendment regulations were addressed in two
post-amendment advisory letters, and National Grid relied on
those letters in failing to pay the statutory premium to all
its employees. In the advisory letters, the DLT found
that National Grid was exempt from the coverage of the Sunday
and Holiday Pay Statute. Id. at ¶¶ 37, 38. On
November 11, 2009, Mark Zito, on behalf of members of Local
310 and Local 310B, filed a complaint with the DLT's
Division of Labor Standards alleging National Grid's
failure to pay the premium hourly rate provided in the Sunday
and Holiday Pay Statute. (Decision 1, App. Ex. A.) In
accordance with Rhode Island law, the DLT Director's
designee (Hearing Officer) conducted a hearing on August 16,
2010. Id.; see §
28-14-19. The parties did not present any testimony
or evidence at the hearing, and instead submitted a
Stipulation of Facts, along with exhibits, to the DLT on
January 24, 2012. Id.
April 25, 2012, the DLT entered its Decision, finding that
the advisory letters were not binding, and, as such,
employees were to be paid at least one and one-half times
their hourly rate for Sunday and holiday work. Id.
at 5, 7. As a result, the DLT ordered that, for employees
that had received less than the statutory premium on Sundays,
National Grid should pay "the difference less the
standard deductions." Id. The DLT also ordered
that National Grid pay "a 25% penalty of the amount
determined to be due each employee." Id.
Grid appealed the Decision to this Court, arguing that the
Decision should be reversed and vacated as the state law
claim was preempted under § 301 of the Labor Management
Relations Act (LMRA), 29 U.S.C. § 185(a) (Section 301).
Additionally, National Grid argues that the DLT abused its
discretion in ordering National Grid to pay a 25% penalty.
The Union asks this Court to affirm the Decision, arguing
that the Decision articulated the relevant law and there is
no manifest error. National Grid has waived its right to
raise a Section 301 preemption defense because it raises the
issue for the first time on appeal.
the Rhode Island Administrative Procedures Act, the Superior
Court has appellate jurisdiction to review final orders of
state administrative agencies. Sec. 42-35-15. Upon review of
an administrative agency appeal, the Superior Court
"'reviews the record to determine whether legally
competent evidence exists to support the findings.'"
Champlin's Realty Assocs. v. Tikoian, 989 A.2d
427, 437 (R.I. 2010) (quoting Sartor v. Coastal Res.
Mgmt. Council, 542 A.2d 1077, 1083 (R.I. 1988)). The
Superior Court may "not . . . substitute its judgment on
questions of fact for that of the agency whose actions are
under review." Barrington Sch. Comm. v. R.I. State
Labor Relations Bd., 608 A.2d 1126, 1138 (R.I. 1992).
That is, where "'competent evidence exists in the
record, the Superior Court is required to uphold the
agency's conclusions.'" Auto Body Ass'n
of Rhode Island v. State Dep't of Bus. Regulation,
996 A.2d 91, 95 (R.I. 2010) (quoting R.I. Pub.
Telecommunications Auth. v. R.I. State Labor Relations
Bd., 650 A.2d 479, 485 (R.I. 1994)).
Superior Court may reverse or modify an agency decision in
limited circumstances, pursuant to § 42-35-15, if
"substantial rights of the appellant have been
prejudiced because the administrative findings, inferences,
conclusions, or decisions are:
"(1) In violation of constitutional or statutory
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error or ...