IN THE MATTER OF THE ARBITRATION BETWEEN WILLIAM M. DAVIES, JR. CAREER AND TECHNICAL HIGH SCHOOL TEACHERS' ASSOCIATION/NEARI/NEA
WILLIAM M. DAVIES, JR. CAREER AND TECHNICAL HIGH SCHOOL BOARD OF TRUSTEES
Plaintiff: Vincent F. Ragosta, Jr., Esq.; Peter D. DeSimone,
Defendant: John E. DeCubellis, Jr., Esq.
this Court is the William M. Davies, Jr. Career and Technical
High School Board of Trustees' (the Board) Motion to
Vacate an Arbitration Award finding the Board violated the
Collective Bargaining Agreement (CBA) between William M.
Davies, Jr. Career and Technical High School Teachers'
Association/NEARI/NEA (the Union) and the Board. The Union
has filed a Cross-Motion to Confirm the Arbitration Award.
The Board contends that the award should be vacated because
the arbitrator exceeded his authority by interpreting the CBA
in such a way as to contradict state law and usurp the
Board's statutory authority. Jurisdiction is pursuant to
G.L. 1956 §§ 28-9-14, 28-9-17 and 28-9-18.
material facts of this case are not in dispute. At the time
of the Board's action that gave rise to the current
dispute, the Board and the Union were parties to a collective
bargaining agreement. Arbitration Award 4-5. The
arbitrator's interpretation of two provisions of the CBA
is at issue in this case. Article 5.1 provides: "To
the extent permissible by law, parties hereto recognize
and accept the principle of seniority in all cases of layoffs
and recalls." CBA 7 (emphasis added). Article 5.7
"All internal applicants for a position at Davies will
be judged on the bases of the following criteria as described
in the Vacancy/Transfer Matrix:
- Elements/Components of the RI Model Evaluation and Support
- Content Knowledge
- Relevant Professional Experience" Id. at 8.
end of the 2015-2016 school year, the Board laid off William
Esser (Esser), who was then teaching at William M. Davies,
Jr. Career and Technical High School (Davies) in the Building
and Construction Trades Department. The Board also laid off
Emmanuel Ruiz (Ruiz), who was then teaching in the Math
beginning of the 2016-2017 school year, a teaching position
in the Math Department became available, and both Esser and
Ruiz were interested in the position. Both Esser and Ruiz
were certified to teach Math; however, Esser was more senior
than Ruiz. To decide which teacher should receive the
position, Adam Flynn (Flynn), the Supervisor of Academic
Instruction at the time, applied the Vacancy/Transfer Matrix
found in Article 5.7 of the CBA (the matrix). He did so
because he believed Esser's move to a different
department was not a "linear recall" and therefore,
it was a transfer that fell more appropriately under Article
5.7 as opposed to Article 5.1 that specifically addressed
recalls. After applying the matrix, both Esser and Ruiz
received the same score. Flynn then looked at both
teachers' Effectiveness Rating Report and found that
while both teachers were rated overall "Effective,"
Ruiz had a slightly higher technical score. Based on this
slight difference in score, Flynn recalled Ruiz for the open
position as opposed to Esser.
Union then filed a grievance, asserting the Board violated
Article 5.1 of the CBA, the seniority provision, by failing
to recall the more senior Esser over the less senior Ruiz.
Arbitration Award 6-7. The grievance proceeded to arbitration
where the issue presented was the following: "Was the
failure to recall Mr. Esser to a Math position a violation of
the collective bargaining agreement? If so, what shall be the
remedy"? Arbitration Award 1-2.
arbitration, the Union contended that the issue was
substantively arbitrable because the CBA included a broad
arbitration clause and the grievance did not involve the
Board's non-delegable statutory duties. Also, the Union
asserted that there was no contractual basis for Flynn's
conclusion that Esser's move to the Math Department would
be a "linear recall" and therefore, Article 5.7,
which governed vacancies and transfers, should have been
applied as opposed to Article 5.1, which specifically
governed recalls. Lastly, the Union pointed to the
Board's past practice of basing lay-off and recall
decisions on seniority to show that seniority should have
been applied in this case as well.
Board took the position that the phrase "to the extent
permissible by law" contained in Article 5.1 of the CBA
prevented it from recalling the more senior Esser over the
less senior Ruiz. Specifically, the Board asserted that the
Basic Education Program Regulations and advisory opinions
issued by the Commissioner of Education prohibited it from
making the recall decision based on strict seniority.
Additionally, the Board averred that the issue was not
arbitrable because the decision of who to recall to the
vacant position was the Board's non-delegable statutory
reviewing each parties' positions, the arbitrator issued
a decision (the award) finding the dispute was arbitrable,
and ultimately, that the Board violated Article 5.1 of the
CBA by failing to recall the more senior Esser to the vacant
position. Arbitration Award 11-14. Specifically, the
arbitrator found that the Board was not legally precluded
from "us[ing] seniority as the determining factor for
recalling laid-off teachers" and therefore, Article 5.1
required "the principle of seniority to govern all
recalls." Id. at 12, 14. The arbitrator issued
an award ...