*1
Joseph Jacinto Jerome SEPTEMBER 1978. Kelleher, Bevilacqua, C.J., Joslin, Weisberger, Doris
Present: JJ. *2 the Cumberland by is an appeal This Kelleher, J. from judgment association) Association (the Teachers’ award made pur- arbitration an Court vacating the Superior a collective bargaining agreement terms of to the suant between 1974-76 agreement) (the years effective during school committee) School Committee (the Cumberland a request arbitrator had approved The the association. with- absence leave of for a 1-year teacher a Cumberland by school denied had been previously out pay committee. with McKeown, teacher a chemistry Paula
In March school system, applied in the Cumberland 3 years’ experience for a Schools superintendent) (the Superintendent 1975-76 aca- for the remuneration without leave of absence graduate The leave was pursue sought demic year. Connecticut, at the University in Molecular Biology degree is not offered full-time study which requires a program credits academic advanced The ator night. either part-time as a teacher were for further certification necessary when her certifi- State of Education Department provisional cation at end of years. expired detailed forth contains provisions setting agreement under which Cumberland schoolteachers the conditions XX, Article entitled be leaves of absence. could granted Leave,” leaves with “Sabbatical for 1-year pay provides advanced study university pro- approved college under are reserved for Leaves teachers gram. provision at in the Cumberland with least years’ teaching experience XXI, Article entitled Leaves of system. “Long-Term *3 Absence,” a for leaves due to provides teacher-exchange pro- Vista, the Peace and military duty, gram, Corps, pregnancy. XIX Article is entitled “Leaves of Absence” and lists seven different section “E. categories,1 including Temporary Leaves of Absence.” This section authorizes absence for a events, such occurrences as variety holi- including religious conferences, and educational in days, any participation legal which is related to teacher’s proceeding employment. E Section contains a catch-all which reads: provision “2. Teachers be allowed additional time off for other when reasons such are personal requests consid- ered valid Superintendent.” Ms. McKeown her leave to this latter sought pursuant pro- vision.
When the school committee denied the the associ- request, ation invoked the set forth Article grievance procedure XXII of the on behalf of Ms. McKeown. Article agreement XXII was described as the “exclusive for resolu- remedy” tion of arbitration, before an arbitrator grievances.2 Binding leave, categories family, 1Theother six deal with sick absence due illnessin the to funerals, military jury duty, training, absence due to deaths and leaves for personal days. business grievance 2A broadly any by any was party defined to include claim to the “violation, agreement that there misinterpretation inequitable has been a application provisions agreement.” of the Association, was the the American Arbitration selected final disposition grievances. process 1975, the arbitrator
After a on the merits in July hearing award: made the following is arbitrable.
“That grievance be a leave with- year’s “That Miss McKeown granted Connec- to attend the University out remuneration Studies. ticut for Advanced addition, has no “In the School Committee obligation after the return of Miss McKeown keep teacher(s) 1976.” in September, committee the school brought complaint
Thereupon, Court for a determine declaratory judgment Superior under the all the involved agreement rights G.L. 1956 award to vacate the pursuant (1968 a motion dated In decision September Reenactment) §28-9-18. had, éffect, held that the arbitrator the trial justice McKeown a leave Ms. amended by granting agreement he vacated the which she was not entitled. Accordingly, exceeded his award on the arbitrator ground *4 authority. from the
The association is now before us on appeal trial Court that the justice Superior contending judgment, award and exceeded his in the arbitrator’s authority vacating to confirm it. refusing we Before the merits of the must controversy, reaching The school committee first address issue of mootness. the Cumber contends that Ms. McKeown did not return to land school after for a year study. system leaving committee, however, met its burden of estab school has not record, mootness on the in view of lishing conflicting at Ms. statements in the briefs and oral concerning argument and the reasons for her failure to McKeown’s whereabouts therefore, is, There real justi- return to her former position. we an effec- ciable before us on which make controversy Vallone, 286, 289, 38 70 R.I. tive determination. DiPrete 769, A.2d 770 (1944). to review or vacate arbitration awards is authority
Judicial 28-9-18 Section authorizes the statutorily prescribed. judici- to vacate an arbitration award in three limited ary only instances: When the award was fraud.
“(a) procured by Where the arbitrator or arbitrators exceeded “(b) their them, mutual, or so executed that a powers, imperfectly final and definite award matter sub- subject mitted was not made. If contract, there was no valid submission or
“(c) has been raised under the objection conditions set forth in §28-9-13.” award,
The trial ruled that the justice, arbi- vacating trator “exceeded his He relied in powers.” on a particular provision agreement (Article XXII) prohibited the arbitrator from decision making any “amending, modify- to or from the ing, adding subtracting provisions arbitrator, In effect, his view the created agreement.” “new classification of leave.” Matteson,
In 332, 355, 115 R.I. 346 A.2d Belanger 137-38 denied, 424 U.S. cert. (1975), L. 2d 736 Ed. we noted that the branch (1976), must not overlook the fact that an arbitration award is the decision of an tribunal which the extra-judicial themselves have created and whose have judgment they mutually to abide. The fact that the arbitrator agreed misconstrued the contract law is no down his ground striking award.
“A reversal of an award judicial arbitration based on the solely court’s with the reviewing disagreement arbitrators’ of the contract would interpretation not 912 but also made
only nullify
bargain
that favors private
threaten the
public policy
strong
from collective
disputes arising
settlement
grievance
355-56,
138.
Id. at
346 A.2d at
bargaining agreements.”
an arbitration award
to vacate
The statutory authority
does not
“exceeded their
where the arbitrators
powers”3
the relevant contrac
re-examination of
authorize
v.
Passenger Corp.
tual
National Railroad
provision.
3E.G., Reenactment) §28-9-18(b). 10(d)(1970); (1968 9 U.S.C. G.L. § *6 of the The arbitrator relied three provisions basically upon of the collective contract that certain finding provisions had when the been violated bargaining agreement grievant First, without was denied a leave of absence 1-year pay. XIX Article section Absence), (Leaves E(2), agree- that be allowed additional “[tjeachers ment provides when such are time off for other reasons personal requests Second, the valid considered by Superintendent.” open- XIX of Article right paragraph recognizes ing and reasonable rules school committee to make enforce that there leave benefits. The committee ensure is no abuse of to discuss with the teachers’ these rules association agreed to their and that would be promulgation agreed they prior their to a test in arbitration reasonable- subject concerning and their fair and administration in individual ness impartial cases.4 the arbitrator relied Article XXV of the Finally, that the agreement, provides regulations practices shall in effect to conditions of continue relating employment force, unless the for the The agreement provides contrary. that arbitrator found the committee had not promulgated to leaves but had established a rules relating any pattern leaves coach foot- practice arbitrarily granting (to team, run a ball The etc.). arbitrator political campaign, the association’s apparently accepted argument of leaves without rules or arbitrary any granting regulations violated the reasonableness of Article XIX. requirement he leave without Accordingly, granted grievant 1-year remuneration.
We believe the decision arbitrator “draws its essence” from the contract and is sufficiently “grounded paragraph provides:
4This
of Article XIX
recognizes
right
“The Association
of the Committee to make and enforce
reasonable rules to ensure that there is no abuse of leave benefits.
Com-
agrees
any
proposed
prior
such
rules with the
mittee
discuss
Association
implementation.
agreed
promul-
their
It is understood and
that the rules
subject
gated
the Committee are
to a test in arbitration as to their reason-
ableness,
Association,
impartial
challenged
if
and as to their fair and
administration in individual cases.”
United
of his authority.
the contract” to be within
scope
Co.,
States
America v. United
Gypsum
Steelworkers
*7
denied,
998,
713,
419 U.S.
731-32
cert.
492 F.2d
(5th Or.),
312, 42
271
Absent a manifest dis
95 S. Ct.
L. Ed. 2d
(1974).
a
irrational
or completely
of the contractual provisions,
regard
the arbitrator’s
result,
courts have no
to vacate
authority
the
356, 346
Matteson, 115 R.I. at
A.2d
v.
at
award. Belanger
the
The trial
erred in
arbitrator
138.
justice
ruling
issue sub
exceeded his authority by deciding
precise
v.
him.
Sabre
Steamship Corp.
mitted to
Oinoussian
807,
224 F.
809
N.Y.
(S.D.
1963).
Corp.,
Supp.
Shipping
The trial
Brother
my
Weisberger place partic-
justice
on the contractual
which bars the
ular reliance
provision
from,
to,
from
or
arbitrator
adding
subtracting
“modifying”
sure,
contract. To be
at least one case
terms of the
has
seized
common
provision
support
justify
of an arbitrator’s
v.
reversal
Co.
interpretation. Torrington
1645,
“This determination legerdemain, by of arbitral an aribitrable error is transformed into amendment of the an indefensible inroad is agreement, Dunau, into contractual Three Problems in finality.” 427, Arbitration, 55 Va. L. 454 Labor Rev. (1969). been, case has for most part, Accordingly, Torrington 5Gorman, Dunau, (1976); Law 589-93 Labor Three Problems Labor Arbitration, 427, Feller, (1969); 55 Va. L. Theory Rev. 454 A General Bargaining Agreement, Collective 61 (1973); Cal. L. Rev. 802 n. 538 Christensen, Oversight, Labor Arbitration and 19 Stan. L. Rev. Judicial (1967). 690-93
915
& Atomic Workers
v. Oil Chemical
Oil Co.
Amoco
rejected.
cert.
Inc.,
F.2d 1288
Cir.),
548
(7th
Union
International
1697,
The school
justice
argues,
agreed,
XIX, XX,
XXI
that the
of Articles
with
specificity
respect
*8
under which
absence and
to conditions
leaves of
sabbaticals
could be
cover the
of leaves
granted “completely
types
the
had
the committee
which
Both
and the
parties
agreed.”
the
Ms.
trial
took
since McKeown did not
justice
position
leaves,
arbitrator,
the
the
for
of
qualify
any
specified
by
leave,
aher
had modified the contract
granting
year’s unpaid
and added a new
This
misses the mark.
provision.
argument
above,
As noted
neither the trial
nor this court has
justice
any
to make such inferences of contractual
authority
intent.6
areas,
While we are reluctant
enter
the
to
into
interpretive
we would
XIX
out
that Article
of the
point
agreement,
wherein the teachers
the
committee’s
school
recognize
right
leaves,
to
further
rules
promulgate
disputes any
relating
Supreme
6 TheUnited
trilogy sought
put
States
Court in the
Steelworkers
practice
halt
judiciary’s usurping
responsibilities
to the
of the
the arbitrator’s
under
guise
ruling
arbitrability
dispute.
on the
of a
United Steelworkers America
1358,
593,
Enterprise
&
Corp.,
Wheel Car
363 U.S.
Here,
Cumberland’s teachers
its school committee had
all
to submit
agreed
disputes concerning
interpretation
their contract
arbitration.
trial
binding
justice,
his reliance
the “no
clause,
on
modification”
through
has reversed the
without statutory authority,
arbitrator’s
reversal of
arbitraitón award
interpretation.
Judicial
*9
a
based
with the
solely
arbitrator’s inter-
disagreement
of the contract nullifies the
of the
bargain
pretation
parties
the
and threatens
that favors
public
strong
policy
private
settlement of
from collective bar-
grievance disputes arising
Matteson,
115 R.I. at
gaining agreements. Belanger
355-56,
917 be our should to, admonition the following Act to be adhered guide: That be the Judge chosen to Judge.
“The arbiter was v. American Stores There it ends.” Safeway has spoken. Union, International Workers Confectionery Bakery F.2d 84 Cir. 1968). (5th Local about should be made a brief comment Before concluding, In his dissent Brother Weisberger. views by my expressed the arbi- in which he believes a of cases has detailed series he reached the the contract or wrong misconstrued trator has the arbi- while If a occurred such misconception conclusion. was to resolve grievance dispute trator attempting that the. sector, would hold Brother my arose in the public his arbitrator had exceeded power. erring the unanimous inconsistent with Such a view is totally nulli- and it in other completely view expressed jurisdictions, More nothing fies the importantly, bargain parties. General of title implies chapter suggests be dual standards judi- ever intended that there Assembly sector §28-9-18, review under one for public cial contends, the If, as brother another for sector. my private scrutiny interest would be served closer public sector, award made in the the merits of arbitration public and not service is to be at the statehouse afforded courthouse. sustained,
The association’s is judgment appeal to the reversed, and the case is remitted from is appealed Court for the confirming Superior entry judgment award. with whom Doris Weisberger, Mr. Mr. Justice Justice determined have in effect
joins, dissenting. majority award, where erroneous that an arbitration even clearly *10 to a collective bargain- based substantial amendments upon unless review from will be insulated judicial ing agreement, conclusion, irrational nature. In this utterly my coming brothers have embraced a line of federal cases distinguished which of arbitration in the generally support finality sector. private
In of these cases to arbitration of applying principles sector, labor in the we must consider certain disputes public The “common law lurking perils. shop” past include the of elaborate practice may application statutory schemes for the of state and government municipal employees, and an arbitrator can be called adjudicate disputes involve the of such statutes. Should interpretation the arbitrator under such circumstances be substantially insulated from review? My this matter position bemay illustrated if a brief helpfully the case law analysis in this area is given. Matteson, 332,
In
115 R.I.
Belanger
A.2d 124
denied,
968,
1466,
cert.
424 U.S.
96 S.
(1975),
Ct.
47 L. Ed.
2d 736
we reversed the trial
(1976),
justice
overturning
the decision of the
arbitrator on
of law
question
relating
of the burden of
In
shifting
proof.
we
taking
position,
followed an extensive line of cases
with United
beginning
Steelworkers
America v.
Co.,
American Manufacturing
564,
363 U.S.
1343,
“When an arbitrator is commissioned to interpret the collective apply he is to bargaining agreement, bring his informed bear in order judgment to reach fair solution of a This is problem. true when it especially comes to remedies. There the need formulating is for a wide flexibility meeting situations. The variety
919
what
specific
never have thought
draftsmen may
contin-
to meet particular
should be awarded
remedy
inter-
to
Nevertheless,
is
an arbitrator
gency.
confined
collective bargaining
and application
pretation
brand
his own
sit to dispense
he does not
agreement;
course look for guidance
He
industrial
justice.
so
sources,
only
his award is
yet
legitimate
from many
collective
from the
bargain-
as it draws its essence
long
an
manifest
words
When the arbitrator’s
ing agreement.
choice but
have no
courts
to this
infidelity
obligation,
597, 80 S.
U.S. at
363
of the award.”
refuse enforcement
added).
at 1428
Ct.
L. Ed. 2d
(emphasis
at
not
an arbitrator may
that
In
indicating
spite
language
the federal
industrial
his own brand of
justice,
dispense
even in
awards
arbitration
have refused to disturb
courts
arbitrator had
that
where one
argue
situations
might
an amend
that the results required
exceeded his
powers
Oil,
Oil
in Amoco
Co.
contract. For
ment of the
example,
Union, Local
International
Chemical
Atomic Workers
court of
7-1, Inc.,
Cir.
1977),
appeals
548 F.2d
(7th
award under circum
an arbitrator’s
declined to overturn
extreme.
be termed
stances which might
case,
a fireman
emergency
In that
when
responded
$30,000
home,
worth of
discovered
they
at
employee’s
result, he was dis-
As a
in his basement.
equipment
company
which required “just
under a contract provision
charged
was an assertion
sole defense
cause.” The employee’s
his
had
this equipment
unidentified
brought
some
persons
evidence
substantial
to “frame him.” No
in order
premises
The arbitrator
assertion.
of this
was
support
produced
had
cause
discharge
found that
company
just
effectuated, but
was
the time the
as of
discharge
employee
arbitration,
the arbi-
that as of the end of
further found
was not justi-
doubts so that discharge
trator had sufficient
from any possible
he absolved
company
fied. Although
he
ordered
with the
conspiracy,
connection
unproved
but with no
back
without
pay
reinstatement of
employee
The court of
rejected
forfeiture
seniority.
appeals
award was
and with
arbitrary,
that his
capricious
challenge
fact.
on United Steel
out foundation in reason or
Relying
*12
&Wheel Car
America v. Enterprise
Corp., supra,
workers of
the court held that the correctness of
arbitrator’s conclu
his
were not relevant to a
sion and the
reasoning
propriety
enun
court in the
general principles
reviewing
light
in his dissent in
ciated in
Moore
Amoco
Enterprise. Judge
that
the arbitrator’s conclusion
out that
company
pointed
had
as of the date of
acted
discharge completely
properly
that
in
mandate and
his
expended
suggested
overruling
“
in effect he
to
his own brand
began
‘dispense
management,
”
of industrial
he was
from
justice,’
something
prohibited
Mr.
even under the
theory
doing
Douglas.
Justice
America v.
brother cites United Steelworkers
United
My
Co.,
“The ordinary nothing judge in the of an ordinary arbitrator ordinary adjudication collective under ordinary bargaining grievance agreement.” be that the normal
The seems to arbitrator’s theory expertise lack of is so is so and a judge’s expertise dangerous great, to suffer an it is better occasional whole process, to submit the outcome of error than arbitration egregious of limited review. even dangers cases which have dealt theory follow principal in Only with in sector. grievances private Belanger Matteson, did we touch to a grievance supra, upon relating We whether the must now decide public employee. rigors in the federal and rule state cases suggested plethora should be to arbitration of applied grievances public Act, sector. The School Teachers’ Arbitration G.L. 1956 9.3 of title (1968 Reenactment) chapter adopted was extensive scheme very statutory superimposed which had and operation previously governed manage- ment of the school This scheme public system. statutory pur- to define of teachers ported rights responsibilities from the of their service to their benefits inception retirement, as well as the responsibilities authority school G.L. committees. See 1956 (1969 Reenactment) title 16. of the collective chapters Many bargaining *14 are which entered agreements into between teachers’ unions and school committees in the cities and various towns make or specific references or to one more of these implicit statutory contexts.
Thus, it be an may arbitrator in necessary determining a and in grievance the contract with supplementing past to consider and practice the contract in the of interpret light Rhode Island educational law.
If this court should choose to abdicate from any meaning- ful function in review determinations, of such practical enforcement of a of law be large body public would of unreviewable discretion untrammeled and left to the this state I interest of of think that the people arbitrators. to and laws relating in the enforcement application who and of those and responsibilities education rights in is far out the educational function too compelling carry Even the most to warrant such abstention on our part. nature and would consonance demands of rudimentary consistency have no a since arbitrators be set at such system, nought their even to reasons for determinations.1 provide obligation extent, sector, In the to a it was thought private great Steel Mr. and his in United colleagues Douglas Justice Wheel America Car Corp., supra, workers Enterprise strike to that industrial and the peace up right giving to all be served decision would best arbitrator’s by making in Rhode and In the sector intents final. purposes public there is no Island to strike. right rule to
I would that respectfully appropriate suggest review arbitrator’s of an follow enforcement respect be a decision derived from literal reading might be The statute that an award may statute. now provides their exceeded vacated arbitrator or arbitrators “[w]here I that we Section would also powers.” 28-9-18(b).2 suggest However, statutory controversy teacher. extensive 1The instant involves school (1969 employees, provisions may see G.L. governing also be found state 36, may special be found Reenactment) chapters legislation 3 to 11 title firemen, discharge. discipline and policemen including methods of relating to 45, police respect to (1970 Reenactment) chapter 20 of title G.L. 1956 See officers, Reenactment) respect 9.1 (1968 chapter and G.L. 1956 of title great importance be of to our firefighters. Interpretation of statutes these governmental structure. not allow the 2My suggests foregoing statute would Brother Kelleher I submit statute is most type judicial review advocated here. that this is quote a Mr. adequate support such review. To statement Justice Frankfurter, speak being symbols gloss.” not Rochin “Words do without 165, 169, 183, 188 (1952). In 96 L. Ed. California, 342 U.S. instance, statutory language judicial, legislative. is not gloss placed adopted to modify gloss has ample authority or limit the which it This court has *15 suit a different context. should an arbi enforce preclude contract provisions trator from decision add any making amending, modifying, to or from the as ing subtracting provisions agreement, I in the case at bar. that such cases as would urge Torrington Co. Metal Products Workers Union Local supra, a much more workable rule in to arbitration provide respect in the sector than do the public majority private employ ment arbitration cases which in effect furnish no review at all. it would not be to limit Perhaps wholly inappropriate arbitrators to the or submission of the as agreement was the rule of the earlier cases. This of view was point in the dissent of Mr. Whittaker in United expressed Justice Co., Steelworkers America v. Warrior Navigation Gulf 585-87, 1354-55, at 80 S. 4 L. Ct. at Ed. 2d at 1419-20. supra cases, In addition to a number of he citing quotes of then Chief Cardozo in language Marchant Mead- Judge Co., 284, 299, Morrison N.Y. 169 N.E. Manufacturing 386, 391 intention, “The (1929): is one of question be ascertained same tests that are to contracts applied * * * generally. No one is under a to resort to duty these tribunals, conventional however their helpful processes, to the extent that he except has his signified willingness.” (Emphasis added.)
I submit that when
with the
dealing
sovereign power
the state and
subdivisions,
its
clear
expression willingness
should be essential to the submission of
matters magnitude
to a third
Indeed,
party
determination.
the Supreme
Court of New
observed in
Hampshire
v. Berlin
Tremblay
Union,
Police
108 N.H.
As sector public nation, bargaining grows our apace new must be techniques devised to meet the ever increasing *16 Public Anderson, Sector The Impact See problems. L. 986. 1973 Wis. Rev. Bargain ing, the arbitrator case, I am of opinion In the instant dimension authority by adding his contractual exceeded had set forth com- an area where the parties contract in I of leaves of absence. all types terms governing prehensive rendered in the as affirm the judgment would therefore Court. Superior Santaniello, Pari, West, ó- V. Santaniello
Manning, James for plaintiffs. Urso, Adamo, defendants. L. Natale
Urso 365. 392 A.2d McBurney. F. Nagy Steven John 11, 1978. OCTOBER , Paolino, C.J., Bevilacqua, Joslin, and Doris Kelleher Present: JJ.