Court backs arbitration tradition

CIVIL UNIONS: Joe Andriole, vice president of the R.I. State Association of Firefighters, represented Little Compton firefighters in arbitration hearings with the town in 2009. The town had sought to forbid him from the hearings, asserting that he was a layman. / PBN PHOTO/NATALJA KENT
CIVIL UNIONS: Joe Andriole, vice president of the R.I. State Association of Firefighters, represented Little Compton firefighters in arbitration hearings with the town in 2009. The town had sought to forbid him from the hearings, asserting that he was a layman. / PBN PHOTO/NATALJA KENT

Labor can celebrate a victory over management after a R.I. Supreme Court decision last month preserved the 50-year tradition of using union reps, rather than licensed attorneys, to argue labor-arbitration cases. Had the court ruled differently, all of Rhode Island’s labor unions, both public and private, might have been required to hire attorneys to argue arbitration cases, potentially adding thousands of dollars to the cost of such labor disputes.
Those on the victorious side believe that’s the very reason this case went to the state’s Supreme Court – to drive up the cost as a way to deter labor unions from taking grievances to arbitration. Those on the other side say it’s the right thing to do; these are complex proceedings that look and feel like legal matters, with presentation of evidence, cross-examination and formal briefs.
“It was a way to quiet the voice of the working person,” said Joseph Andriole, the central figure in the case. Andriole is vice president of the Rhode Island State Association of Firefighters, an association representing most of the firefighters’ unions in this state. He is also an arbitration specialist, with 25 years of experience in that arena. In his current role, he argues a new arbitration case on behalf of firefighters a couple times per month. One of those cases three years ago launched this Supreme Court decision.
In February of 2009, the Little Compton firefighters’ union filed two grievances against the town, alleging violations of minimum staffing levels and failure to fill a vacant position. In response, Little Compton’s fire chief, then its town council, denied the grievances. The union then filed for arbitration, per the procedures spelled out in its contract with the town.
Before the arbitration case could be heard, Little Compton filed a motion in Newport Superior Court to prevent Andriole from representing the union in the arbitration case. The town claimed the union was violating state law by using a layman in a legal matter, alleging Andriole would be engaged in the unlawful practice of law. In doing so, the town was challenging a decades-old tradition in Rhode Island. The court denied Little Compton’s motion, the arbitration hearings took place, and the town ultimately prevailed in both grievances. The nonlawyer challenge continued, however.
The town pushed the fight to the state’s Unauthorized Practice of Law Committee, which in July 2010 agreed that the union had committed a “technical violation” of state law by allowing a nonattorney to argue the arbitration case, but noted that this is common practice in Rhode Island. The committee asked the Supreme Court for guidance.
In February, Rhode Island Supreme Court Justice Gilbert Indeglia issued the decision on the court’s behalf, calling it “an exquisitely close case,” but stating he is “reluctant to disturb the status quo at this time.” Labor unions breathed a sigh of relief.
“I think this case was about putting a financial hurt on the union,” Andriole said. “That Little Compton union is comprised of only eight members. Hiring an attorney for arbitration, you could easily spend $10,000 on a case. … You do the math.”
Richard Humphrey, the attorney representing Little Compton disputes Andriole’s suggestion. “There was never an incentive to put a financial hurt on the union,” he insisted. “We live with these people, we work with these people, why would we want to hurt them financially?”
Little Compton Town Council President Robert Mushen acknowledged that the town was trying to deter the labor union from seeking arbitration, but not by driving up the cost. “It was basically an effort to try to avoid defaulting to arbitration as an early solution,” said Mushen. He believes the formality of a legal case is a deterrent in itself.
“If we were successful, I would have hoped both sides would work harder to not get to arbitration,” Mushen said. “I was hoping that requiring attorneys on both sides would change the standard of review. There would be a sense of ‘OK, we’re going to need to present a legal case with an attorney, do we have a legal case that will hold up?’ ” Attorney Mark Gursky, of Gursky Law Associates in North Kingstown, isn’t buying it. Gursky represented the firefighters before the Supreme Court, and he believes the town’s motivation had everything to do with money and leverage against the unions.
“They wanted to force the unions to hire a more-expensive, less effective-advocate,” Gursky said. “Either the taxpayers of Little Compton were extremely altruistic for the benefit of the legal profession, or the town had a less than honorable intention. … This was not a town trying to defend the integrity of the legal profession.”
Actually, it was, Humphrey said. “When an attorney believes there’s a violation of the law, I think he has an obligation to raise the issue. We didn’t pursue this vigorously, we simply raised the issue.”
Gursky points out that the same rules apply to both sides, and management is not required to hire an attorney either – but in recent years, most cities and towns have done so.
“It’s always puzzled me how cities and towns that are so short of cash cannot train advocates to handle a large amount of labor arbitrations,” Gursky said. “Of course, if they did, then they couldn’t hire their friends for exorbitant sums of money. … How else do you explain the legal bills that some of these broke cities and towns are willing to pay to fight these grievances?”
Gursky estimates that municipalities routinely spend tens of thousand of dollars in arbitration cases against unions. He and Andriole both believe the cities and towns could cut costs by using nonattorneys.
“I respect their right to hire whomever they want to best articulate their positions,” Andriole said, “but when mayors are being elected, town administrators are being elected, chiefs of staff are being appointed, directors of human resources are being appointed, finance directors, all of those people, with all of that talent, they could save municipalities tens of thousands of dollars. When you look and see how much it has cost the communities in legal fees, it is astounding.” Though that may be true for many Rhode Island municipalities, it’s not true for Little Compton, Humphrey said. “We have a small town, with a part-time government,” he said. There are no finance directors, HR directors or other professionals to argue these cases in Little Compton. The attorney is the best option, he says.
In this case, Humphrey said, the town had a $3.6 million interest in winning the case. That’s their estimate for the lifetime cost of a full-time firefighter through 25 years of employment and retirement. Had the town lost the original case, it might have been forced to hire a new firefighter. In that light, Humphrey said, his $145 hourly rate to present an arbitration case is cost-effective.
Had Indeglia ruled differently, Rhode Island would have been the first state in the country to stipulate that only lawyers can argue labor-arbitration cases. A handful of states, including Connecticut, Utah, Washington and California, have laws or court rules explicitly permitting nonattorneys in such cases. Most are in a similar position as Rhode Island, without clear rules either way.
The American Civil Liberties Union, the American Arbitration Association and the International Association of Firefighters all entered briefs to the court supporting the use of nonattorneys in labor arbitration.
The Rhode Island Bar Association also submitted an amicus brief in this case, written by Lauren E. Jones of Jones Associates. The bar association was most concerned with how a decision in this case could have a far-reaching impact on labor and other quasi-judicial administrative proceedings throughout Rhode Island. The bar association argued that some labor-arbitration matters might demand the use of attorneys, such as serious matters involving an individual employee, and perhaps the court should take this as an opportunity to delineate the rules for the use of nonattorneys in these matters. The court chose not to do so. •

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