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Town of North Providence v. Iafrate

Superior Court of Rhode Island, Providence

December 10, 2018


          For Plaintiff: Vincent F. Ragosta, Jr., Esq.; D. Peter DeSimone, Esq.

          For Defendant: Gregory Piccirilli, Esq.; Jeffrey W. Kasle, Esq.


          LICHT, JUSTICE

         The Town of North Providence (Town), has appealed the Decision of the Rhode Island State Labor Relations Board (Board), finding that the Town violated G.L. 1956 § 28-7-13(10) by retaliating against Elizabeth Iafrate (Iafrate) for her history of filing grievances. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.


         Facts and Travel

         Before addressing the incident which is the subject matter of this appeal, it is helpful to set forth Iafrate's employment history with the Town.

         Iafrate began her career with the Town in 1988, as a Clerk 1 in the Board of Canvassers. (Hr'g Tr. 15:8-11, Apr. 25, 2017.) She was a member of Rhode Island Laborers District Council, Local 1033 (Union), the union for employees of the Town. (Decision Findings of Fact, at 3.) The relationship between the Town and the Union was governed by a collective bargaining agreement (CBA), which provided the procedure, including arbitration, for grievances which arise from "the application, meaning or interpretation of the express provisions of this agreement." (CBA Joint Ex. 1, at 23.)

         Iafrate transferred into the position of senior clerk to the Town Clerk's office "in the mid-90s," and was later promoted to deputy town clerk. Id. at 15:16-19. In 2007, Iafrate transferred to the planning and zoning department, where she served as senior clerk and chief zoning clerk. Id. at 16:3-7.

         On June 10, 2013, Iafrate received a memorandum from Mayor Charles Lombardi (Lombardi or Mayor) informing her that she was being transferred to the Finance Department. (Hr'g Tr. 16:12-15, Apr. 25, 2017). Iafrate filed a grievance through the Union regarding this transfer. Id. at 16:19-17:1. Before the grievance could be arbitrated, Iafrate's position in the finance department was eliminated. Id. at 17:1-2. Iafrate again filed a grievance through the union protesting the elimination of her position, and sought to exercise "bumping rights." Id. at 17:19-18:1-6. The grievances were consolidated and arbitrated together. Id. at 18:13-15. The arbitrator decided against allowing Iafrate to exercise her bumping rights, and Iafrate was returned to the position of Clerk 3 in the zoning and finance department. Id. at 18:16-21. Iafrate also filed a grievance challenging the denial of her application for a housing inspector position, which was summarily arbitrated and denied. (Hr'g Tr. 40:16-24, Apr. 25, 2017; Joint Ex. 9.)

         In 2014, Iafrate took an extended period of sick leave from her position in the zoning and finance department. (Hr'g Tr. 18:20-24, Apr. 25, 2017.) Iafrate was scheduled to return to work on June 2; however, on May 29, 2014, Iafrate was informed that she would be transferred to the tax assessor's office and to report to that office on her return to work. Id. at 19:3-10. Iafrate assumed the role of Clerk 3 in the tax assessor's office, a position which she continues to occupy today. Id. at 19:8-12.

         In 2016, Iafrate filed two grievances regarding the fact that she believed she was doing the work of a deputy tax assessor. (Hr'g Tr. 20:8-21, Apr. 25, 2017; see Joint Exs. 11, 12.) One of the grievances was scheduled to be arbitrated on January 12, 2017. Id. at 21:1-9; Joint Ex. 6.

         On November 2, 2016, Thomas Kane[1] (Kane) sent an email to all the employees in the tax assessor's office, including Iafrate, regarding a new policy regarding transfers of trusts. (Hr'g Tr. 265:10-15, June 8, 2017.) Kane then came out into the office to discuss the policy. Id. Iafrate vocally disagreed with the policy, telling Kane that it contradicted a state statute. Id. at 265:15-266:14. According to Iafrate, later that afternoon, Kane called her into his office and told her she was "a little strong with him," and that she should not have disagreed with him in front of the other staff. Id. at 266:14-24. Kane placed an employee warning regarding the incident in Iafrate's disciplinary file. Id. at 267:1-10; see Town's Ex. 2. According to Iafrate, she did not learn that Kane had written an employee warning regarding the incident until her attorney accessed her disciplinary records in the instant proceedings before the Board. Id.

         On the afternoon of December 9, 2017, Iafrate received a call from a Providence resident, Allyn Reynolds. (Hr'g Tr. 88:17-24, Apr. 25, 2017.) Kane overheard the call from his office, which was across from Iafrate's workspace. Id. at 88:17-21. Kane walked over to Iafrate and asked her to transfer the call to him because "her tone was elevated, she sounded frustrated," the call "wasn't progressing to a solution" and "really need[ed] to be handled differently." Id. at 88:21-22; 89:17-22. It is undisputed that Kane did not talk to Iafrate about her conduct on the call with Reynolds on December 9, 2016, or at any time prior to January 11, 2017. (Hr'g Tr. 27:14-24, Apr. 25, 2017.)

         Kane spoke with Reynolds and was able to resolve her issue.[2] While speaking with Kane, Reynolds expressed a desire to write a letter about her experience on the call with Iafrate. (Hr'g Tr. 95:2-6, Apr. 25, 2017.) At some time during the week following the call, Kane spoke with Mayor Charles Lombardi and Richard Fossa, [3] the Mayor's Chief of Staff, about the December 9, 2016 call to alert him "about the potential issue" and that Reynolds would be writing a letter (Hr'g Tr. 98:19-24, April 25, 2017; Hr'g Tr. 141-143, May 30, 2017).

         Reynolds drafted her letter on December 12, 2016. (Respondent's Ex. 1.) Reynolds had planned to mail the letter, but was unable to do so because of difficulties with a chronic back condition. (Hr'g Tr. 103:6-19, Apr. 25, 2017.) Kane offered to pick up the letter from her, and did so on December 15, 2016, delivering it to the Mayor the same day. Id. Upon reading the letter, the Mayor was "very concerned" by the contents of the letter, and wanted to know the details, expressing to Kane that there would be some type of discipline. (Hr'g Tr. 124:20-24; 127:17-128:3, May 30, 2017.)

         The Mayor wrote a response to Reynolds. (Hr'g Tr. 149:3-10, May 30, 2017.) See also Hr'g Tr. 255:20-22, June 8, 2017. They ultimately spoke on the phone and the Mayor apologized to Reynolds for how she was treated. Id. at 256:1-257:8. He asked if she would "come forth and take responsibility" for her letter and testify in hearings, and Reynolds agreed to do so. Id. at 257:18-258:3.

         The week before Christmas, Fossa called Ronald Coia, [4] business manager for the Union, and described Iafrate's conduct on the December 9, 2017 call with Reynolds and Reynolds' subsequent letter. Fossa told Coia that they were considering suspension or termination, but that any disciplinary action would be deferred until after the holidays. Apparently, Coia agreed with this approach. (Hr'g Tr. 183:17-23, May 30, 2017; 208:13-15, May 30, 2017.) It is undisputed that neither Kane nor Fossa spoke with Iafrate regarding her conduct on the call with Reynolds until January 11. (Hr'g Tr. 66:22-67:2, Apr. 25, 2017.)

         On January 11, 2017, Iafrate returned from a break at 3:30 P.M. and was called into Kane's office with Fossa who handed her a letter informing her that she had a "pre-suspension hearing" scheduled for the next day at 10 A.M. because of an incident with a "customer" in December. Id. at 23-25. According to Iafrate, she was unaware what customer or which phone call to which Fossa was referring. Id. at 25:19-26:1.

         The next morning, Mayor Lombardi, Fossa, Lynda Labbadia (a payroll employee), and Iafrate attended the pre-suspension hearing. Coia represented Iafrate and Vincent Ragosta represented the Town. Id. at 28:1-7. After the completion of the pre-suspension hearing around noon, the group participated in the previously scheduled arbitration hearing of Iafrate's pending grievance. Id. at 28:10-20.

         Around 3:30 P.M., Fossa came to Iafrate's office and handed her notice that she would be suspended for five days without pay, beginning the following day. See Joint Ex. 3; Hr'g Tr. 29:1-7, Apr. 25, 2017. While delivering the notice, Fossa told Iafrate "we could have dropped this, you know, if you got rid of the [deputy tax assessor grievance] . . . if that went [away] and the other grievance went away, you would have came [sic] to work tomorrow." Id. at 52:1-5.[5]

         The following day, Iafrate grieved the suspension through the Union. (Joint Ex. 9; Hr'g Tr. 52:14-21, Apr. 25, 2017.) On January 23, 2017, Iafrate filed an unfair labor practice charge before the Board asserting that the Town timed the January 12, 2017 pre-suspension hearing in order to attempt to "extort her into dropping her grievances in exchange for more lenient treatment." (Decision at 1-2.) The Board summarily issued a Complaint in the matter on March 1, 2017, alleging that the Town violated R.I.G.L. § 28-7-13(8). (Decision at 2.)

         Hearings before the Board occurred on April 25, 2017; May 30, 2017; and June 8, 2017. Iafrate testified on her own behalf on April 25, 2017. (Hr'g Tr. 14:21-23, Apr. 25, 2017.) Thomas Kane, Mayor Charles Lombardi, Lynda Labbadia, and Ronald Coia testified on May 30, 2017. On June 8, 2017, the Board heard testimony from Frank Bursie and Allyn Reynolds, and allowed Iafrate to be recalled as a witness.

         Noting the distinct differences in testimony regarding the December 9, 2016 call between Iafrate and Reynolds, the Board first assessed the credibility of the witnesses at the hearing. (Decision at 10.) The Board found that while Reynolds had spoken to Iafrate and Kane "became involved" in the phone call, there was no evidence in the record supporting Reynolds' testimony that Iafrate had called Reynolds a "deadbeat" and stated "people have to pay their bills." Id. at 10-11. Specifically, the Board noted that Kane did not testify that Reynolds shared Iafrate's inflammatory alleged comments with him, and Reynolds did not include those statements in the letter. Id. The Board also found that Reynolds was not a ...

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