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The full case caption appears at the end of this opinion. General Laws 1956 � 36-4-63 precludes paid-sick-leave time from beingcounted as hours worked for purposes of computing a state employee’s entitlement to overtimecompensation. It further provides that any collective bargaining agreement (CBA) or arbitration awardto the contrary “shall be null and void.” [FOOTNOTE 1] In the case at bar, a CBA between the Rhode Island Alliance of Social Services Employees, Local 580 (union) and the State of Rhode Island conformed to state lawin this respect by providing that “hours which are paid for but not actually worked shall not be countedas hours worked in computing overtime compensation.” Notwithstanding these provisions, a former Department of Administration (DOA) official,Richard Wessels, prepared an interoffice memorandum in 1988 that interpreted � 36-4-63 to allowstate employees to be paid overtime in such a manner that they would “not be penalized for the use ofsick leave before or after working the required overtime during the same work week * * *.” As aresult, from November 1988 to February 1996, at least one department of state government, theDepartment of Human Services (DHS) — and possibly others — counted paid-sick-leave time as hoursworked toward completing a state government employee’s established-work-week schedule. Consequently, DHS paid overtime to DHS employees who used paid-sick-leave time to satisfy all or aportion of their established-work-week schedule of hours and who then worked additional hours duringthe same pay period. In 1996, however, DHS ceased doing so in response to an audit prepared by thestate Auditor General’s Office. The auditor’s report concluded that DHS’s payment of overtime inaccordance with the 1988 Wessels memorandum violated applicable state law barring the use ofpaid-sick-leave hours in computing the employees’ entitlement to overtime compensation. The union grieved DHS’s 1996 decision to follow state law in this regard. Eventually,notwithstanding the state’s contention that this issue was not substantively arbitrable, an arbitratorupheld the union’s grievance and the state petitioned the Superior Court to vacate the arbitrator’saward. In response, the union sought to confirm the award. After a hearing, the Superior Courtultimately agreed with the state’s position and vacated the award. The union now appeals from thatSuperior Court judgment. Analysis Though “judicial authority to review or to vacate an arbitration award is limited,” the court “must* * * [vacate] the award * * * [when] the arbitrator or arbitrators exceed * * * their powers.” RhodeIsland Council 94, AFSCME, AFL-CIO v. State, 714 A.2d 584, 587-88 (R.I. 1998) (quoting G.L.1956 � 28-9-18). One sure way for an arbitrator to exceed his or her powers is to arbitrate a disputethat is not arbitrable in the first place. See Rhode Island Brotherhood of Correctional Officers v. StateDepartment of Corrections, 707 A.2d 1229, 1234 (R.I. 1998) (RIBCO). And “[w]hether an issue isarbitrable is a question of law to be reviewed by the court de novo.” Rhode Island Council 94, 714A.2d at 588 n.2. We hold that, in this case, the Superior Court ruled correctly that the arbitrator exceeded hisauthority by deciding an issue that was not arbitrable ab initio. Here, the parties’ dispute involved anondelegable-nonmodifiable-statutory mandate for DHS to exclude paid-sick-leave hours whencomputing whether its employees were entitled to overtime compensation during any given pay period. As we ruled in Town of West Warwick v. Local 2045, Council 94, 714 A.2d 611, 612 (R.I. 1998)(mem.), “a valid employment requirement prescribed by state law cannot be negotiated and is not aproper subject for arbitration.” See also Pawtucket School Committee v. Pawtucket Teachers’Alliance Local No. 930, AFT, 652 A.2d 970, 972 (R.I. 1995) (holding that “requirements of state law* * * cannot be submitted to arbitration”). As a result, the arbitrator’s award not only manifestlydisregarded the applicable terms of � 36-4-63, [FOOTNOTE 2] but the award also overrode those provisions in theparties’ own CBA that barred such a result. For this reason, we affirm the trial justice’s decision tovacate the award and to deny the union’s motion to confirm the same.In State, Department of Mental Health, Retardation, and Hospitals v. Rhode Island Council 94AFSCME, AFL-CIO, 692 A.2d 318, 321-22 (R.I. 1997) (MHRH) (citing Pawtucket SchoolCommittee, 652 A.2d at 972), we held that an arbitrator cannot resolve a labor dispute by issuing aruling that would conflict with or compromise the statutory authority or legal obligations of a departmentof state government. Although MHRH involved public-safety issues, its scope and rationale were notlimited to such matters. See, e.g., National Association of Nurses v. State, 614 A.2d 782, 783 (R.I.1992) (per curiam) (holding that � 36-4-64 could limit a CBA provision allowing sick leave tosupplement workers’ compensation benefits). Rather, the ratio decidendi of cases like PawtucketSchool Committee, MHRH, National Association of Nurses, and RIBCO is a broader one: neither adepartment of state government nor a union of its employees — let alone an arbitrator — can agree torelieve the parties to a CBA of their obligation to comply with applicable state law because of aninconsistent CBA provision or a contrary past practice of the parties. Indeed, the parties to a CBAhave no legal authority to contravene state law by word or deed. Thus, statutory obligations cannot bebargained away via contrary provisions in a CBA, nor can they be compromised by the past or presentpractices of the parties. And they certainly cannot be negated by an arbitrator who purports to do sothrough the medium of “contract interpretation.” Indeed, “[t]his Court has previously held that powersand responsibilities assigned to governmental employers by state law may not be negotiated away andare not arbitrable.” Town of West Warwick, 714 A.2d at 612. In sum, our cases in this area all boil down to a fundamental proposition: applicable stateemployment law trumps contrary contract provisions, contrary practices of the parties, and contraryarbitration awards. Thus, if a statute contains or provides for nondelegable and/or nonmodifiable duties,rights, and/or obligations, then neither contractual provisions nor purported past practices nor arbitrationawards that would alter those mandates are enforceable. For this reason, labor disputes and grievancesthat seek to modify applicable state law are not subject to arbitration because the arbitrator has nopower to do so even if the parties to a CBA have agreed to such a modification or have conductedthemselves in a way that contravenes what applicable state law requires. Accordingly, a state official like Wessels had no power to give away the overtime store byacceding to the payment of these benefits via a method of computation that both state law and the CBAhad removed from the bargaining table. Thus, neither he nor DHS had the power to modify thestatutory obligations of the parties to a CBA and thereby bind the state through a course of conduct orby express contract terms to obligations that were plainly illegal because they were and remain contraryto applicable state law. [FOOTNOTE 3] Illegal contracts, ultra-vires arbitration awards, and deviant-past practices ofthe parties are as unenforceable in the public-employment labor-law context as they are in othersettings. Indeed, the result in this case merely conforms to the old and venerable rule that contracts thatcontravene applicable state statutes are illegal, and therefore no contractual rights can be created orenforced thereunder. See, e.g., Birkett v. Chatterton, 13 R.I. 299, 302 (1881) (holding that a minorplaintiff could not enforce an employment contract where such contract violated Rhode Island’schild-labor statute). “The law will not help a [person] get paid for doing what the law says shall not bedone.” Id. Conclusion Pursuant to � 36-4-63, the state cannot legally allow its employees to use paid sick time toqualify for overtime compensation in a given pay period. Neither a contrary long-standing practice ofthe parties nor the renegade legal interpretations of a high-ranking state official can override a state lawthat plainly provides otherwise. For this reason, the dispute in this case was not arbitrable. And thearbitrator exceeded his powers when he allowed the dispute to become a subject of the arbitration andwhen he fashioned an arbitration award that flouted not only the CBA but applicable state law. Hence,we deny the union’s appeal and affirm the Superior Court’s judgment. :::FOOTNOTES::: FN1 The relevant version of G.L. 1956 � 36-4-63, as amended by P.L. 1988, ch. 558, � 1,provided as follows: “Sick leave and other leave — Effect of discharging uponovertime work and overtime compensation. — (a) After anemployee’s discharge with pay of three (3) consecutive days of sickleave in any given calendar year, his or her appointing authority shallthereafter require a physician’s certificate or other evidence satisfactoryto the appointing authority in support of each and all other requests fromthat employee for sick leave and/or leaves of absence due to illnesswhether leave is with pay or without pay during the remainder of thatcalendar year. Sick leave is hereby defined to mean a necessaryabsence or absences from duty due to an employee’s illness, injury, orexposure to contagious disease. In the event that the required evidencesatisfactory to the appointing authority is not presented by the employeeprior to or upon the conclusion of that leave, no payment of anycompensation to which the employee would otherwise be entitled shallbe made and the employee shall be considered for all purposes as.having been absent without leave. “(b) In any given pay period in the event that an employeedischarges any sick leave or leave of a type referred to in subsection (a)of this section, either with pay or without pay, he or she shall bepermitted to work overtime only after he or she has worked his or herfull thirty-five (35) or forty (40) hours, whichever is appropriated for thejob classification. This subsection shall also apply to leave without paywhich is taken by an employee for purposes other than those purposesreferred to in subsection (a) of this section excluding, specifically,planned vacation days, personal days, and leave for death inemployee’s immediate family. “(c) Overtime, for purposes of this section, shall mean theperformance of hours of work in any work week which are in excess ofan employee’s established work week schedule, or when requested bythe employer. Hours which are paid for but not actually worked exceptplanned vacation days, personal days, jury duty, and leave for death inthe employee’s immediate family shall not be counted as hours workednor shall they otherwise be used in computing overtime compensation. “(d) The provisions of subsection (b) of this section shall not beapplicable to employees in the nonstandard category. “(e) Notwithstanding other subsections of this section, anemployee who is granted leave with or without pay for the purpose offulfilling a military obligation shall be eligible to perform overtime work. “(f) Notwithstanding the provisions of any other law, it shall beunlawful for any state agency or any person or persons acting on behalfof the agency, to agree to, or enter into any agreement including acollective bargaining agreement or any amendment, modification,extension, or replacement thereof, whether verbal or written, whichcontains provisions that are inconsistent with the provisions of thissection and the inconsistent provisions shall be null and void, whetherthe provisions result from agreement or the award of an arbitrator orarbitration panel under the provisions of chapter 11 of this title.” FN2 In 1988, the General Assembly amended � 36-4-63(c) to add the words “or when requestedby the employer” to the definition of overtime contained in the statute. See P.L. 1988, ch. 558, � 1. Asa matter of law, this amendment had no effect whatsoever on the statutory bar precluding paid sickleave from counting towards an employee’s overtime compensation. FN3 It goes without saying that, save for its ultimate decision to end the challenged practice of payingillegal overtime benefits, the state’s conduct in this matter was hardly commendable. By failing toprevent or even to impede DHS’s implementation of its illegal sick-leave policy, the state not onlyacquiesced in this long-standing practice, but also it was largely responsible for allowing it to occur inthe first place. Indeed, allegedly at the behest of a large state employees union, Wessels, who was ahigh-ranking state official within the DOA, authored the very memorandum that caused at least DHS –if not other state departments as well — to follow this illegal practice for many years until the AuditorGeneral’s report finally gave DHS pause and caused it to stop paying this illicit overtime compensation.
State v. Rhode Island Alliance of Social Servs. Employees Supreme Court State of Rhode Island, Plaintiffs, v. Rhode Island Alliance of Social ServicesEmployees, Local 580, SEIU, Defendants. NO. 98-244 – A FILED: March 17, 2000 APPEALED FROM: Superior Court in the County of Providence Before: Weisberger, C.J., Lederberg, Bourcier, Flanders, Goldberg, JJ. Counsel for Plaintiff: Peter N. Dennehy and William E. Smith Counsel for Defendant: Francis X. Flaherty
 
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