Supreme Court
No. 2020-21-Appeal. (KM 16-747)
West Warwick Housing Authority :
v. :
RI Council 94, AFSCME, AFL-CIO. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Long, for the Court. The plaintiff, West Warwick Housing
Authority (plaintiff or the housing authority), appeals from a Superior Court
judgment in favor of the defendant, Rhode Island Council 94, AFSCME, AFL-CIO
(defendant or the union), denying the plaintiff’s motion to vacate an arbitration
award, granting the defendant’s motion to confirm the award, and awarding
attorneys’ fees to the defendant as the prevailing party. On appeal, the plaintiff
argues that the trial justice committed reversible error in denying its motion to vacate
because, the plaintiff contends, the defendant failed to prove at arbitration that an
enforceable agreement to arbitrate existed at the time of the termination that gave
rise to the grievance at issue in this case. Conversely, the union maintains that,
because the trial justice correctly denied the plaintiff’s motion to vacate, this Court -1- should deny the instant appeal and remand the matter to the Superior Court for
determination of an award of attorneys’ fees and costs to the defendant relating to
this appeal.
For the reasons stated herein, we affirm the judgment of the Superior Court.
Facts and Procedural History
The housing authority is a governmental agency that operates public housing
for the Town of West Warwick. The union represents certain municipal employees
employed by the housing authority.
On July 27, 2012, the housing authority and the union executed a collective
bargaining agreement governing the terms of employment for certain housing
authority employees (the CBA). The CBA’s effective dates were July 24, 2012,
through December 31, 2014. By the terms of Section 40.1 of the CBA, the CBA
would automatically renew every year thereafter for a one-year term, unless either
party provided written notice prior to 120 days before the CBA’s expiration date of
a desire to renegotiate the CBA. The CBA also contained a provision titled
“Supplement” (the HUD ratification provision), which stated:
“This agreement between the West Warwick Housing Authority and Rhode Island Council 94, AFSCME, AFL- CIO is conditional upon the approval of the U.S. Department of Housing and Urban Development. Should this contract not be approved by H.U.D., both parties will seek, in good faith, to have a determination in the appropriate forum.”
-2- On April 29, 2015, the housing authority suspended the employment of
Deborah Tellier (the grievant) as a Senior Housing Specialist, and the grievant was
ultimately terminated. The union grieved her termination pursuant to the relevant
provisions of the CBA. After the parties failed to resolve the grievance, the union
duly requested arbitration on June 30, 2015, pursuant to a provision of the CBA that
mandated arbitration if timely requested.
Arbitration proceedings commenced on March 1, 2016. The parties submitted
the CBA as a joint exhibit, but the housing authority challenged the substantive
arbitrability of the grievance; according to the housing authority, the parties did not
have a valid agreement to arbitrate. Specifically, the housing authority argued before
the arbitrator that the CBA was invalid because it had not been ratified by the United
States Department of Housing and Urban Development (HUD), pursuant to the HUD
ratification provision of the CBA. The housing authority argued in the alternative
that, assuming that a valid CBA between the parties had existed, it nevertheless
expired before the union filed the grievance at issue in this case; therefore, the
housing authority contended that the grievance was not substantively arbitrable due
to the lack of a valid agreement by the parties to arbitrate. Importantly, there is no
evidence in the record that the housing authority had, prior to the commencement of
the arbitration, sought resolution of the issue of the existence of a valid agreement
to arbitrate.
-3- For its part, the union countered that there was no evidence in the record
before the arbitrator that HUD was statutorily required to ratify the CBA. The union
further argued that the housing authority had complied with the CBA both during
the initial term of the contract and in the months after the last effective date of
December 31, 2014. The union maintained that it had reasonably relied on the
housing authority’s prior compliance with the CBA in support of the union’s belief
that an enforceable contract indeed existed between the parties.
In his written award and decision, the arbitrator made the following findings.
On the issue of substantive arbitrability, he found that the CBA did not expressly
allocate to either party the obligation to submit the CBA to HUD. However, he
found that the evidence demonstrated that it was the housing authority that had a
financial and operational relationship with HUD, and conversely that there was no
evidence that the union had a relationship with HUD. Consequently, the arbitrator
found that it was the housing authority that was responsible for submitting the CBA
to HUD for approval.
The arbitrator also found that the housing authority had acted as if the CBA
was valid at least until May 26, 2015, when, in connection with this case, the housing
authority notified the union of its repudiation of the grievance and arbitration
provisions of the CBA. In finding that the union had relied on the housing
authority’s performance of its obligations under the CBA until that time, the
-4- arbitrator acknowledged in particular that there was evidence that the housing
authority had been paying contractually obligated salaries pursuant to the CBA.
The arbitrator further found that there was no evidence that either party had
sought modification of the CBA pursuant to the renewal provisions in Section 40.1
and that, in fact, both parties had negotiated the renewal of the CBA after
December 31, 2014, the expiration date for the contract’s initial term, as provided in
Section 40.1. The arbitrator inferred from this evidence that the housing authority
had believed that the CBA was viable until at least May 26, 2015, when the housing
authority repudiated the grievance and arbitration provisions in connection with the
grievance at issue in this case.
As to the merits of the grievance, the arbitrator decided in the grievant’s favor,
determining that the housing authority did not have just cause to terminate her.
Thereafter, the housing authority filed a complaint in Kent County Superior
Court seeking to vacate the arbitration award pursuant to G.L. 1956 § 28-9-18.
Before the trial justice, the housing authority conceded that it had the responsibility
to obtain HUD ratification of the CBA. However, the housing authority again
maintained that the grievance was not substantively arbitrable because the CBA was
invalid, and also argued that the arbitrator’s decision was irrational and exceeded the
arbitrator’s authority. In response, the union moved to confirm the award.
-5- After a hearing, the trial justice issued a written decision denying the housing
authority’s motion to vacate the arbitration award and granting the union’s motion
to confirm the award. First, the trial justice concluded that the CBA was valid and
that therefore the grievance was substantively arbitrable. The trial justice also
confirmed the arbitrator’s award on the merits of the grievance. The trial justice
then awarded attorneys’ fees to the union, as the prevailing party, pursuant to
§ 28-9-18(c). The trial justice entered final judgment in favor of the union, and the
housing authority timely appealed.
Issues Presented
Before this Court, the housing authority argues that the trial justice committed
reversible error in denying the motion to vacate the arbitration award pursuant to
§ 28-9-18. The housing authority does not challenge the trial justice’s decision with
respect to the merits of the arbitrator’s award in favor of the grievant. Rather, the
housing authority assigns multiple errors to the trial justice’s determination that the
CBA was an enforceable agreement and that the presumption of substantive
arbitrability applied.
For its part, the union maintains that the record establishes that the parties had
a valid agreement to arbitrate and that, thus, the grievance was substantively
arbitrable. The union highlights the procedural travel of the dispute in support of its
argument that the trial justice correctly denied the housing authority’s motion to
-6- vacate, granted the union’s motion to confirm, and awarded attorneys’ fees to the
union as the prevailing party. The union asks us to affirm the judgment and remand
the case to the Superior Court for the determination of an award of attorneys’ fees
and costs to the union for defending this matter on appeal before this Court.
Standard of Review
“Public policy favors the finality of arbitration awards, and such awards enjoy
a presumption of validity.” State, Department of Corrections v. Rhode Island
Brotherhood of Correctional Officers, 64 A.3d 734, 739 (R.I. 2013) (quoting
Cumberland Teachers Association v. Cumberland School Committee, 45 A.3d 1188,
1191 (R.I. 2012)); see School Committee of City of Pawtucket v. Pawtucket Teachers
Alliance AFT Local 930, 120 R.I. 810, 815, 390 A.2d 386, 389 (1978); see also
AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643,
650 (1986); United Steelworkers of America v. Warrior and Gulf Navigation
Company, 363 U.S. 574, 582-83 (1960); School Committee of Town of North
Kingstown v. Crouch, 808 A.2d 1074, 1078 (R.I. 2002). It is therefore “well settled
that, in the typical case, the judiciary’s role in the arbitration process is limited.”
Providence Teachers’ Union Local 958, AFT, AFL-CIO v. Hemond, 227 A.3d 486,
490 (R.I. 2020) (quoting Providence School Board v. Providence Teachers Union,
Local 958, AFT, AFL-CIO, 68 A.3d 505, 508 (R.I. 2013)).
-7- “Generally, ‘absent a manifest disregard of a contractual provision or a
completely irrational result,’ the award of an arbitrator will be upheld.” State
(Department of Administration) v. Rhode Island Council 94, A.F.S.C.M.E., AFL-
CIO, Local 2409, 925 A.2d 939, 944 (R.I. 2007) (brackets omitted) (quoting
Providence Teachers Union v. Providence School Board, 725 A.2d 282, 283 (R.I.
1999)). “A court therefore may not reconsider the merits of an award despite
allegations that it rests upon errors of fact or on a misinterpretation of the contract.”
Rhode Island Council 94, AFSCME, AFL-CIO v. State, 714 A.2d 584, 588 (R.I.
1998).
However, this Court reviews de novo whether a dispute is arbitrable. E.g.,
State, Department of Corrections v. Rhode Island Brotherhood of Correctional
Officers, 866 A.2d 1241, 1247 (R.I. 2005). Any question about the meaning of a
statute is also reviewed de novo. E.g., Olamuyiwa v. Zebra Atlantek, Inc., 45 A.3d
527, 533 (R.I. 2012).
Analysis
Section 28-9-18(a) provides the limited statutory grounds for vacating an
arbitration award:
“(1) When the award was procured by fraud.
“(2) Where the arbitrator or arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final, and definite award upon the subject matter submitted was not made. -8- “(3) If there was no valid submission or contract, and the objection has been raised under the conditions set forth in § 28-9-13.”
The housing authority does not allege that the arbitrator’s award was procured
by fraud, nor does it dispute the arbitrator’s finding that the substance of the
grievance is arbitrable according to the terms of the CBA. Rather, the housing
authority asserts, as it did before both the arbitrator and the Superior Court, that the
CBA was unenforceable at the time the union sought arbitration of the grievance
because (1) HUD failed to ratify the CBA, or, alternatively, (2) the CBA expired
prior to the grievant’s termination in May 2015. Thus, the gravamen of the housing
authority’s arbitrability challenge is the assertion that the parties did not have a valid
agreement to arbitrate the grievance.
As this Court explained in Providence Teachers Union v. Providence School
Committee, 440 A.2d 124 (R.I. 1982), “[§] 28-9-18 requires the court to vacate
arbitration awards * * * when the ‘submission or contract’ was not valid and an
objection to the validity was timely made under § 28-9-13.” Providence Teachers
Union, 440 A.2d at 126 (emphasis added).
Section 28-9-13, titled “Validity of arbitration without judicial order—
Grounds for attack,” states, in pertinent part:
“An award shall be valid and enforceable according to its terms and under the provisions of this chapter without previous adjudication of the existence of a submission or -9- contract to arbitrate, subject to the provisions of this section:
“(1) A party who has participated in any of the proceedings before the arbitrator or arbitrators may object to the confirmation of the award only on one or more of the grounds specified in this section, provided that he or she did not continue with the arbitration with notice of the facts or defects on which his or her objection is based, because of a failure to comply with § 28-9-8 or with § 28-9-10, or because of the improper manner of the selection of the arbitrators.
“(2) A party who has not participated in any of the proceedings before the arbitrator or arbitrators and who has not made or been served with an application to compel arbitration under § 28-9-5 may also put in issue the making of the contract or submission or the failure to comply with it, either by a motion for a stay of the arbitration or in opposition to the confirmation of the award. * * * The arbitration hearing shall be adjourned upon service of the notice pending the determination of the motion. Where the opposing party, either on a motion for a stay or in opposition to the confirmation of an award, sets forth evidentiary facts raising a substantial issue as to the making of the contract or submission or the failure to comply with it, an immediate trial of the issue shall be had. * * *.” (Emphasis added.)
Section 28-9-13 establishes a presumption of validity of arbitration
proceedings and the resulting awards, subject to certain limitations. In the absence
of a prior adjudication of the existence of an agreement to arbitrate, § 28-9-13(1)
authorizes a party who has participated in arbitration proceedings to raise the validity
of the agreement and object to the award where (1) the arbitration was not conducted
according to § 28-9-8, which prescribes requirements for providing a time and place - 10 - for the hearing, and notice thereof; (2) the arbitrator did not take the oath of
arbitrators and the parties did not waive their objection pursuant to § 28-9-10; or
(3) the arbitrator was improperly selected.
Significantly, however, § 28-9-13(1) curtails the ability of a party who has
participated in arbitration proceedings to object to the award in circumstances where
the party “continue[d] with the arbitration with notice of the facts or defects on which
[the party’s] objection is based[.]” See Providence Teachers Union v. Providence
School Board, 689 A.2d 388, 391 (R.I. 1997) (examining § 28-9-13 and noting
proviso that an objecting party “not continue with the arbitration with notice of the
facts or defects upon which his or objection is based”) (quoting § 28-9-13(1)).
By contrast, § 28-9-13(2) authorizes a party who has not participated in
arbitration proceedings to challenge “the making of the contract” in circumstances
where the party did not receive notice of a motion to compel arbitration pursuant to
§ 28-9-5 or otherwise submit to an adjudication of the existence of a contract to
arbitrate. See Providence Teachers Union, 689 A.2d at 391 (examining § 28-9-13(2)
and explaining that it bars a party that did not participate in arbitration proceedings
from contesting the validity of an agreement to arbitrate only if that party received
notice of the arbitration proceedings as enumerated under that subsection). A party
who meets these criteria retains the ability to pursue adjudication of that challenge
through “an immediate trial of the issue[.]” Section 28-9-13(2).
- 11 - In the instant case, despite the housing authority’s continued assertion that the
parties’ agreement to arbitrate was invalid, there is no evidence that the housing
authority sought adjudication of the issue of the validity of the CBA, by way of a
motion to stay arbitration proceedings, before participating in the arbitration
proceedings. Nor is there evidence in the record that the housing authority declined
to participate in the arbitration proceedings, which would have allowed the union to
seek an order compelling such participation pursuant to § 28-9-5. Cf. Operative
Plasterers’ and Cement Masons’ International Association, Local 40 v. Contracting
Plasterers of Rhode Island, 619 A.2d 838, 839 (R.I. 1993) (reversing the trial
justice’s order compelling the defendants to participate in arbitration proceedings
pursuant to a collective bargaining agreement because there was no agreement to
arbitrate); Prima Paint Corporation v. Flood & Conklin Mfg. Co., 388 U.S. 395,
403-04 (1967) (reviewing the United States Arbitration Act of 1925 and explaining
that an adjudication of the validity of an agreement to arbitrate occurs pursuant to a
party’s motion to compel arbitration and before arbitration proceedings); Radiation
Oncology Associates, Inc. v. Roger Williams Hospital, 899 A.2d 511, 513, 514-16
(R.I. 2006) (affirming the trial justice’s order denying the plaintiffs’ motion to
appoint an arbitrator pursuant to the Rhode Island Arbitration Act and granting the
defendant’s motion to enjoin arbitration where “strong and specific language of [the
contract’s] expiration provision limited the reach of * * * the arbitration clause”).
- 12 - Instead, the housing authority appeared before the arbitrator, offered the CBA as a
joint exhibit, and submitted the question of substantive arbitrability for the
arbitrator’s consideration. One consequence of choosing this procedural path was
to limit the grounds upon which the housing authority could rely when subsequently
objecting to the validity of the CBA. See § 28-9-13(1) (limiting grounds for objection
to confirmation of an arbitration award to the “failure to comply with § 28-9-8 or
with § 28-9-10, or because of the improper manner of the selection of the
arbitrators”).
The housing authority seeks to divert attention from the consequence of this
choice by focusing instead on principles of contract law and arguing that, because
the union was the party seeking to enforce the CBA before the arbitrator, it was the
union that had, and has, the burden of proving the existence of an enforceable
contract.
However, the housing authority’s reliance on principles of contract law is
inapposite; the provisions of the arbitration statutes control this analysis. See
Hemond, 227 A.3d at 490 (explaining that the provisions of chapter 9 of title 28 of
the general laws govern judicial review of an arbitration provision contained in a
contract between an employer and a labor union). Compare Radiation Oncology
Associates, Inc., 899 A.2d at 514 (stating, in the context of adjudicating the existence
of an agreement to arbitrate, that general rules of contract construction apply to the
- 13 - question of whether the parties agreed to arbitrate), with § 28-9-13 (“An award shall
be valid and enforceable according to its terms and under the provisions of this
chapter without previous adjudication of the existence of a submission or contract to
arbitrate, subject to the provisions of this section[.]”). The language of § 28-9-13
plainly provides that the party objecting to the validity of an agreement to arbitrate
bears the burden of “set[ting] forth evidentiary facts raising a substantial issue as to
the making of the contract or submission or the failure to comply with it[.]” Section
28-9-13(2).
A party who seeks an order vacating an arbitration award on the grounds that
the arbitrator exceeded their powers, pursuant to § 28-9-18(a)(2), also bears the
burden of demonstrating entitlement to relief. See Feibelman v. F.O., Inc., 604 A.2d
344, 345 (R.I. 1992) (“[W]hen a party claims that the arbitrators have exceeded their
authority, the claimant bears the burden of proving this contention[.]”) (quoting
Coventry Teachers’ Alliance v. Coventry School Committee, 417 A.2d 886, 888 (R.I.
1980)).
The housing authority has contested the validity of the agreement to arbitrate
since March 1, 2016. Consequently, it was the housing authority that bore the burden
of setting forth facts in support of its claim, either by developing a record before the
arbitrator or by invoking the jurisdiction of the Superior Court and seeking
adjudication of the validity of the agreement to arbitrate in a timely manner. See
- 14 - § 28-9-13(2). It did not do so, and that failure limited not only the grounds upon
which the housing authority may rely in seeking judicial review, but also the record
on review as this Court evaluates whether the Superior Court erred in denying the
housing authority’s motion to vacate the arbitration award. See § 28-9-13(1)
(enumerating the three circumstances in which a party who has participated in
arbitration may challenge the validity of an agreement to arbitrate); Rhode Island
Council 94, AFSCME, AFL-CIO, 714 A.2d at 588 (stating that, when reviewing a
decision on a motion to confirm or to vacate an arbitration award, this Court defers
to the arbitrator’s findings of fact). The housing authority may not now benefit from
the absence of evidence that it created, particularly in light of the otherwise facial
validity of the agreement to arbitrate.
Mindful that “it is the arbitrator’s view of the facts and of the meaning of the
contract that [the parties] have agreed to accept[,]” Rhode Island Council 94,
AFSCME, AFL-CIO, 714 A.2d at 588 (quoting United Paperworkers International
Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37-38 (1987)), this Court accepts the
arbitrator’s findings and conclusions regarding the validity of the CBA, both with
respect to which party had the obligation to secure ratification by HUD and whether
the CBA had expired prior to the housing authority’s termination of the grievant in
May 2015.
- 15 - A review of the proceedings before the arbitrator reveals that the housing
authority joined the union in submitting the CBA as a joint exhibit at the arbitration
proceedings; the housing authority thereafter presented no evidence regarding
ratification by HUD or the effect of the HUD ratification provision in the absence of
such ratification. Again, the arbitrator nevertheless found evidentiary support for
the proposition that the housing authority was in contact with HUD and, thus,
inferred that the housing authority was in the position to obtain ratification. The
arbitrator further found that the evidence demonstrated that the housing authority
acted as though the CBA was indeed valid; the housing authority complied with the
CBA’s terms and conditions at least until May 26, 2015, by paying contractually
designated salaries to its employees pursuant to the CBA.
Moreover, the arbitrator also found that the CBA was effective during the
events of the grievant’s employment dispute because the CBA had automatically
renewed for an additional year, until December 31, 2015, in accordance with the
provisions of Section 40.1. The housing authority terminated the grievant in May
2015, and the union timely requested arbitration on June 30, 2015; the grievant’s
claim therefore arose well before the renewed expiration date of December 31, 2015.
Before both this Court and the trial justice, the housing authority argued that
Section 40.1 of the CBA is an indefinite renewal clause that violates the three-year
term limit established by G.L. 1956 § 28-9.4-5; however, the housing authority did
- 16 - not raise this contention before the arbitrator and therefore it has waived that
argument. See Lemerise v. Commerce Insurance Company, 137 A.3d 696, 704 (R.I.
2016) (holding that the defendant waived any argument concerning application of
Massachusetts law because the question had not been submitted to the arbitrator).
Furthermore, we unequivocally reject the housing authority’s attempt to
introduce a letter that it characterizes as “indisputable evidence” that the union
provided the 120-day written notice as required in Section 40.1 of the CBA, thus
precluding automatic renewal. This Court is not a fact-finding body, and we review
only the record that is certified pursuant to the Supreme Court Rules of Appellate
Procedure. See Art. I, Rule 10 of the Supreme Court Rules (“Except as otherwise
provided in subsection (c) [relating to proceedings pending in the Superior Court,
Family Court, or District Court], the papers and exhibits filed in the trial court and
the transcript of proceedings or electronic sound recordings thereof, if any, shall
constitute the record on appeal in all cases.”). Additionally, the housing authority
did not seek, nor did we grant, leave to present new evidence on appeal. Therefore,
the proffered letter is not properly before us, and we will not consider it in our
analysis. See G.L. 1956 § 9-24-10 (“No new testimony shall be presented to the
[S]upreme [C]ourt on appeal, but in case of accident or mistake, or erroneous ruling
excluding evidence in the [S]uperior [C]ourt, the [S]upreme [C]ourt may grant leave
- 17 - to parties to present further evidence, and may provide by general rule or special
order for the taking of such evidence.”).
Applying §§ 28-9-13 and 28-9-18(a) to the facts at hand, as we must, it is clear
to us that the housing authority severely limited the arguments it could bring and
impacted its burden of proof by first challenging the validity of the CBA at
arbitration. Thus, from the evidence and contentions that the housing authority
submitted to the trial justice, we, on the record before us, perceive no error in the
trial justice’s decision denying the housing authority’s motion to vacate the
arbitration award. Additionally, because we accept the arbitrator’s findings that the
parties had a valid agreement to arbitrate, we need not reach the housing authority’s
remaining arguments on appeal.
Attorneys’ Fees and Costs
The union requests that this Court remand the case for determination of the
attorneys’ fees and costs incurred in defending the housing authority’s appeal before
this Court, citing to § 28-9-18(c) and this Court’s opinion in Gannon v. City of
Pawtucket, 200 A.3d 1074 (R.I. 2019) (affirming a trial justice’s award of attorneys’
fees and costs pursuant to § 28-9-18(c)).
The union has not provided meaningful briefing before this Court on the
applicability of § 28-9-18(c). We therefore decline to reach the issue. See Wilkinson
v. State Crime Laboratory Commission, 788 A.2d 1129, 1131 n.1 (R.I. 2002)
- 18 - (“Simply stating an issue for appellate review, without a meaningful discussion
thereof or legal briefing of the issues, does not assist the Court in focusing on the
legal questions raised, and therefore constitutes a waiver of that issue.”).
Conclusion
For the foregoing reasons, we affirm the judgment of the Superior Court and
remand the record to the Superior Court.
- 19 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
West Warwick Housing Authority v. RI Council 94, Title of Case AFSCME, AFL-CIO. No. 2020-21-Appeal. Case Number (KM 16-747)
Date Opinion Filed July 1, 2022
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Associate Justice Melissa A. Long
Source of Appeal Kent County Superior Court
Judicial Officer from Lower Court Associate Justice Richard A. Licht
For Plaintiff:
Timothy C. Cavazza, Esq. Attorney(s) on Appeal For Defendant:
Carly Beauvais Iafrate, Esq.
SU-CMS-02A (revised June 2020)