Opinion
C. A. PC-2023-05355
08-21-2024
RIDE LEGAL COUNSEL/HEARING OFFICER PROFESSIONAL UNION, Petitioner/Appellant, v. RHODE ISLAND STATE LABOR RELATIONS BOARD, by and through its Chairperson, WALTER J. LANNI, and its Members, KENNETH B. CHIAVARINI, SCOTT G. DUHAMEL, STAN ISRAEL, ARONDA R. KIRBY, LAWRENCE E. PURTILL, and HARR F. WINTHROP, and RHODE ISLAND DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION, Respondents/Appellees.
For Plaintiff: Paul Pontarelli, Esq. For Defendant: Jeffrey W. Kasle, Esq. Matthew H. Parker, Esq.
For Plaintiff: Paul Pontarelli, Esq.
For Defendant: Jeffrey W. Kasle, Esq.
Matthew H. Parker, Esq.
DECISION
NUGENT, J.
Before this Court is an administrative appeal by RIDE Legal Counsel/Hearing Officer Professional Union (the Union) seeking the reversal of the Rhode Island State Labor Relations Board's (the SLRB or the Board) October 10, 2023 Decision (the Decision). The Decision dismissed an unfair labor practice (ULP) complaint that the Board issued against the Rhode Island Department of Education (RIDE) following a ULP charge filed by the Union. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
I
Facts and Travel
On November 19, 2020, Union President Pontarelli (Pontarelli) filed a ULP charge with the Board on behalf of the Union, Case ULP-6297 (ULP-6297), alleging that RIDE violated G.L. 1956 §§ 28-7-13(3), (5), (8) and (10). (Certified R. (R.) Pet'r's Ex. 1.) Pontarelli asserted that RIDE took discriminatory action against Pontarelli and Union Vice President Kathleen Murray (Murray) by criticizing their work and removing them from assignments after the Union filed a memorandum in RIDE's Superior Court appeal regarding the Board's certification of the Union. Id. at Exs. 1, 2. RIDE terminated Pontarelli for cause on December 15, 2020 while ULP-6297 was still pending before the Board. Id. at Exs. 7, 12-14. Pontarelli filed an amended ULP charge against RIDE on December 28, 2020 that included his termination. Id. at Ex. 6.
The Board completed an informal hearing process regarding the amended charge. Id. at Exs. 7-10. On February 19, 2021, the Board voted to issue a ULP complaint in ULP-6297 and scheduled the case for a formal hearing. Id. at Ex. 11. On November 17, 2022, prior to the conclusion of the formal hearing for ULP-6297, RIDE filed a complaint against Pontarelli with the Rhode Island Supreme Court Disciplinary Board (the Disciplinary Complaint) requesting disciplinary action against Pontarelli for a pattern of unethical conduct concerning RIDE. (R. Joint Ex. 1.) The Disciplinary Complaint claimed that Pontarelli
"violated various duties owed to his former client, including his: (1) duty of confidentiality (Rules 1.6 and 1.9); (2) duty of loyalty (Rule 1.7); (3) duty to report any alleged legal violation to his client before making a public allegation (Rule 1.13); and (4) duty not to use means when representing a client 'that have no substantial purpose other than to embarrass, delay or burden a third person' (Rule 4.4(a))." Id. at 3-4.
On December 27, 2022, the Union filed another ULP charge with the Board, Case ULP-6349 (ULP-6349), alleging that RIDE violated §§ 28-7-13(5), (8) and (10) by "seeking to discipline Pontarelli for filing a 'baseless' and 'frivolous' amended [ULP] charge in Case ULP-6297." (R. Case File at 47-48.) The Union's charge further claimed that RIDE's Disciplinary Complaint "threatens, coerces, intimidates and retaliates against Pontarelli for engaging in protected, concerted activity." Id. On March 16, 2023, following its investigation into the Union's charge, the Board voted to issue a ULP complaint and proceed to a formal hearing in ULP-6349. Id. at 45-46. At its May 9, 2023 meeting, the Board was presented with a Motion to Consolidate ULP-6349 and ULP-6297 from the Union and an objection from RIDE. Id. at 19-35. The Board rejected the Motion to Consolidate, reasoning that the parties disagreed as to whether the underlying facts were similar or different and the hearing process for ULP-6297 had concluded, while ULP-6349 was at the beginning of the formal hearing process. Id. at 20.
The Board held a formal hearing on May 18, 2023 where the parties presented arguments, testimony, and exhibits. See R. May 18, 2023 Hr'g Tr. (Tr.). At the Board's June 2023 meeting, the Union presented a renewed Motion to Consolidate ULP-6349 and ULP-6297, and RIDE objected. (R. Case File, at 9-15.) The Board again denied the Motion to Consolidate. Id. at 10. On September 5, 2023, the Board considered ULP-6349 for review and determination, arriving at a deadlocked vote. (R. Case File, at 6 (Decision).) On October 10, 2023, the Board issued its decision dismissing the charge and complaint for ULP-6349 due to a three to three tie vote among its members. Id. at 1-7.
II
Standard of Review
Review of administrative decisions "'is confined to a determination of whether there is any legally competent evidence to support the agency's decision,' and further, whether the decision was otherwise occasioned by error of law." Tierney v. Department of Human Services, 793 A.2d 210, 212-13 (R.I. 2002) (quoting Environmental Scientific Corporation v. Durfee, 621 A.2d 200, 208 (R.I. 1993). "In reviewing an administrative agency's decision, the Superior Court shall not 'substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.'" Wayne Distributing Co. v. Rhode Island Commission for Human Rights, 673 A.2d 457, 459 (R.I. 1996) (quoting § 42-35-15(g)).
Pursuant to § 42-35-15(g), a court reviewing an administrative appeal may:
"affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
"When an administrative agency both hears evidence and issues a final decision, . . . a reviewing court should 'reverse factual conclusions of administrative agencies only when they are totally devoid of competent evidentiary support in the record.'" Environmental Scientific Corporation, 621 A.2d at 209 (quoting Milardo v. Coastal Resources Management Council, 434 A.2d 266, 272 (R.I. 1981)). Although this Court gives great deference to the factual findings of an administrative agency, questions of law are reviewed de novo. Iselin v. Retirement Board of Employees' Retirement System of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008).
III
Analysis
A. Procedure of Board Decisions
1. Tie Votes
The Rules and Regulations section of the Rhode Island State Labor Relations Act (the SLRA), chapter 7 of title 28, states that "[t]he provisions of this section shall not be construed to prevent or limit the board or its agents by direction of the board, consistent with published rules and regulations, from dismissing, after investigation and informal hearings, the unfair labor practices charge." Section 28-7-9(d). Moreover, "[a] vacancy in the board does not impair the right of the remaining members to exercise all the powers of the board, and two (2) members of the board, at all times, constitutes a quorum." Section 28-7-5.
"Under common law or parliamentary law, an affirmative resolution or action that is the subject of a tie vote fails of adoption." 59 Am. Jur. 2d Parliamentary Law § 17 (2024). While the Rhode Island Supreme Court has not ruled on the question of whether a tie vote constitutes dismissal of a ULP charge before the SLRB, it considered a tie vote among members of a zoning board of review in Richard v. Zoning Board of Review. 47 R.I. 102, 130 A. 802 (1925). In Richard, the Woonsocket Zoning Board of Review considered the appeal of a building inspector's decision at a meeting with only four of five zoning board members present, and the vote resulted in a two to two tie. Id. at 102, 130 A. at 803. The Court stated that "as there was a quorum of the board at the hearing, and as there was not a concurring vote of three members to reverse the decision of the building inspector, the legal effect of the vote was a denial of the appeal." Id.
Although RIDE cites to the 1987 version of American Jurisprudence when using this quote in its memorandum and the Decision from the Board appears to use the same quote, an updated version of the rule is present in the updated August 2024 version. See RIDE's Mem. 10; see also Decision; but see 59 Am. Jur. 2d Parliamentary Law § 17 (2024).
The Supreme Court has also stated that, in the absence of rules of parliamentary procedure or statutory regulations determining procedure, "it is permissible to resort to Robert's Rules of Order[], the widely accepted codification of parliamentary law." Lecht v. Stewart, 483 A.2d 1079, 1080-81 (R.I. 1984) (discussing whether the Rhode Island State Council of the Arts could vote during a recess where five members left after the Council had a six to six tie vote). Robert's Rules of Order states that "[o]n a tie vote, a motion requiring a majority vote for adoption is lost, since a tie is not a majority." Robert's Rules of Order § 44 (12th ed. 2020).
The Rhode Island Superior Court has previously considered tie votes in the context of a Board hearing on ULP charges. In City of Warwick v. Rhode Island State Labor Relations Board, No. KC-2009-1390, 2012 WL 894011, at *1 (R.I. Super. Mar. 12, 2012), the Board voted three to three in a meeting to consider a ULP charge against the City of Warwick and contacted the absent member via telephone to break the tie. The absent member, Mr. Mulvey, voted in favor of the motion to uphold the ULP charge. Id. Upon appeal, the Superior Court reversed the Board's decision, stating that the tie-breaking vote must be discarded because it was improper procedure for the absent member to cast a telephonic vote. Id. The Superior Court held that "[w]ithout Mr. Mulvey's vote, the vote on this motion was three to three, and the motion fails." Id.
Another Rhode Island Superior Court case, Coventry Fire District v. Rhode Island State Labor Relations Board ex rel. Lanni, No. PC-2004-5950, 2005 WL 2883170 (R.I. Super. Oct. 31, 2005), discussed the lack of factual findings in a Board decision where ULP charges were dismissed due to a tie vote. In Coventry, the Superior Court reviewed analogous cases from other states in the absence of Rhode Island Supreme Court precedent on administrative appeals of tie votes, ultimately relying on the decision of the Court of Appeals of New York in Tall Trees Construction Corporation v. Zoning Board of Appeals of the Town of Huntington, 761 N.E.2d 565 (N.Y. 2001) as "[t]he most persuasive rationale." Id. at *9. Using Tall Trees Construction Corporation as a guide, the Court in Coventry established that a tie vote constitutes a dismissal on procedural grounds and, moreover, that limited factual findings in such circumstances are "of no consequence, as those findings were not relied upon and did not form the basis of the Board's final decision-dismissal on procedural grounds." Id. at *9.
In Tall Trees Construction Corporation, the Huntington Zoning Board of Appeals considered an application for a variance, resulting in a two to two tie vote. Tall Trees Construction Corporation v. Zoning Board of Appeals of the Town of Huntington, 761 N.E.2d 565, 567 (N.Y. 2001). The Zoning Board denied the application without making any findings of fact in its decision, stating only that the petitioner had not received enough votes for the application to pass. Id. The New York Appellate Court found that it was not required for the Zoning Board to make a finding of fact where a denial or dismissal was based on a tie vote because the matter was decided on procedural grounds, and facts did not influence the Zoning Board's decision. Id. at 570.
Further, the Superior Court agreed with the finding in Tall Trees Construction Corporation that courts "should have the ability to review tie [vote] decisions of an administrative agency, but that review should be limited[,]" and only in cases "where there is clearly no support in the record for the agency's decision, is it appropriate for the Court to reverse the agency decision. Otherwise, the agency must be given deference." Id. at *10. Ultimately, the Board's decision was affirmed, and the Superior Court held that "as the agency's tied vote decision resulted in a dismissal of the charge on procedural grounds, the agency's limited findings of fact did not constitute unlawful procedure." Id. at *12.
The Union argues that the Board provided no rational explanation as to how a vote to tie on a motion to dismiss the ULP-6349 complaint resulted in a dismissal of the complaint. (Appellant's Mem. in Supp. of its Appeal (Appellant's Mem.) 3.) The Union asserts that the Board member who was absent from the Board meeting at the time of the tie vote, Kenneth B. Chiaviarini, could have broken the tie vote at another meeting. Id. at 3-4. The Union points out that the Board upheld the ULP charge on March 14, 2023 and issued a complaint. Id. at 4. The Union argues that the Board's discussion about its procedure is factually inaccurate and irrational. Id.
The Board argues that while it has seven appointed members, it is authorized to review a case when only six board members are present and refers to § 28-7-5, which allows the Board to exercise its powers as long as a quorum of two members is present. (Board's Mem. in Opp'n to Appellant's Appeal (Board's Mem.) 4.) The Board asserts that it provided an explanation for the dismissal, referring to page 5 of the Decision where the Board stated that it has no mechanism to deal with deadlocked votes and relied on Robert's Rules of Order to determine that the motion is lost on a tie vote. Id. at 5.
RIDE argues that the Union fails to distinguish Board member Harry F. Winthrop's (Member Winthrop) motion to dismiss the charge from the Board's separate decision to dismiss the charge. (RIDE's Mem. in Supp. of its Obj. to the Union's Appeal (RIDE's Mem.) 10.) RIDE references the Board's citation to Robert's Rules of Order in the Decision and asserts that various Rhode Island cases have held that a tie vote results in dismissal. Id. at 10-11. RIDE additionally lists cases from other states showing there is a common-law rule that a tie vote defeats the party with the burden of proof. Id. at 11. RIDE argues that the Union recognized that it was the charging party for ULP-6349 and held the initial burden of proof. Id. at 12. RIDE asserts that Member Winthrop moved to dismiss the complaint at the September 5, 2023 meeting, and the Board's tie vote properly resulted in a denial of both Member Winthrop's motion to dismiss at the meeting as well as the Union's requested relief. Id.
The Board's dismissal of ULP-6349 on the basis of a tie vote was procedurally sound. At the September 5, 2023 meeting resulting in a tie vote, Member Winthrop made a motion to deny and dismiss ULP-6349, which was seconded by Aronda R. Kirby (Member Kirby). (RIDE's Mem. App. 1, at 2.) The Board voted on Member Winthrop's motion to deny and dismiss the case, resulting in the three to three tie vote. Id. In the Decision, the Board stated that it had no mechanism to deal with deadlocked votes, therefore "without a majority to support the motion to deny and dismiss the Charge, the Board has no choice but to dismiss the within matter." (Decision, at 5.) The Board further clarified that "a tie vote among its members, as occurred in this case, means that the Complaint has not been upheld and the allegations raised in the Complaint have been denied as there is no majority consensus on the issue presented to the Board." Id.
Pursuant to Rhode Island precedent, statutory language at § 28-7-5, and parliamentary rules, the Board was authorized to dismiss ULP-6349 on procedural grounds. Accordingly, the Board's Decision was not issued based on unlawful procedure.
B. The Board's Findings of Fact
As established above, the Rhode Island Superior Court has stated that the Board is not required to present extensive findings of fact for a matter that was dismissed on the procedural grounds of a tie vote, and this Court must defer to the agency, reversing only when "there is clearly no support in the record for the agency's decision[.]" Coventry Fire District, 2005 WL 2883170, at *10. Applying this standard of review, the Court now addresses the Union's allegation that the Board erred in dismissing ULP-6349 because it did not review or analyze the record as a whole in this matter or cite any evidentiary legal standard regarding the burden of proof.
1. Burden of Proof
The Union argues that the Board did not cite to a legal standard for the burden of proof in this case, namely City of Providence v. Rhode Island State Labor Relations Board and RI Council 94, AFSCME, Local Union 1339, No. PC-2018-5355, May 6, 2022, Nugent, J. In City of Providence, this Court stated that
"discharge or discipline is an unfair labor practice if the employee's protected conduct is a substantial or motivating factor for the action or is based in whole or in part on antiunion animus. N.L.R.B. v. Wright Line, 251 N.L.R.B. 1083 (1980), enforced 662 F.2d 899, 902 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982). In satisfying the requirements of the SLRA, the employee has the burden of proving by a preponderance of the evidence that anti-union sentiment contributed to the employer's adverse employment action. The employer then has the burden of proving, as an affirmative defense, that the adverse action would have occurred even in the absence of the unfair labor practice. N.L.R.B. v. Transportation Management Corp., 462 U.S. 393 (1983)." City of Providence v. Rhode Island State Labor Relations Board, and RI Council 94, AFSCME, Local Union 1339, No. PC-2018-5355, at *11-12, May 6, 2022, Nugent, J. (footnote omitted).
The Wright Line test determines "whether an employee was terminated because of protected conduct or because of his unprotected behavior." Good Samaritan Medical Center v. National Labor Relations Board, 858 F.3d 617, 631 (1st Cir. 2017). To satisfy this test, the employee or a union's General Counsel must demonstrate "'(i) the employee's engagement in the protected activity; (ii) the employer's knowledge of that activity; (iii) the employer's antipathy toward it; and (iv) a causal link between the antipathy and the adverse employment action.'" Id. (quoting E.C. Waste, Inc. v. National Labor Relations Board, 359 F.3d 36, 42 (1st Cir. 2004)). After employee's burden is satisfied, the employer "can either rebut this prima facie showing, or it can seek to prove 'by a preponderance of the evidence that the discharge rested on the employee's unprotected conduct as well and that the employee would have lost his job in any event.'" Id. (quoting National Labor Relations Board v. Transportation Management Corporation, 462 U.S. 393, 400 (1983)).
The Union asserts that in City of Providence, the Board applied the evidentiary legal standard established in Wright Line, and the Board should have applied the same standard in this case. (Appellant's Mem. 4-5.) RIDE argues that there is no need to address the burden of proof as the Board should have dismissed ULP-6349 under any legal standard. (RIDE's Mem. 13). The Board argues that although the Union asserts that it met its initial burden of proof, it was unable to convince three Board members that a ULP had occurred and, as a result, the Board was required to dismiss ULP-6349. (Board's Mem. 8.)
It is worth noting that the Union appears to assume that the Board's issuance of the ULP-6349 complaint against RIDE on March 16, 2023 served as a decision in its favor that supports its satisfaction of the burden of proof, arguing that the Board "upheld, not dismissed, 'the Charge' on March, 1[6], 2023." (Union's Mem. 4.) However, as the Union was previously advised during the hearing, the complaint does not indicate a finding for either party on the merits of a ULP charge-it merely alleges ULP claims against an employer and allows the parties to appear and address them at a formal hearing. See R. Case File at 46 ("a hearing will be conducted before the Rhode Island State Labor Relations Board on the allegations set forth in the Complaint attached hereto, at which time and place you will have a right to appear, in person or otherwise, and to give testimony") (emphasis added).
Because the Board was not required to make extensive findings of fact to support a denial on procedural grounds and did not reach a finding on the merits, a discussion of the Wright Line test and whether the parties met their burden of proof under that standard was not necessary as part of the Decision. See Coventry Fire District, 2005 WL 2883170, at *9 ("As in Tall Trees Construction Corp., the Board here also did not reach a finding on the merits."). Neither party was able to convince a majority of the Board to find in favor of adopting or dismissing the ULP charge. See City of Warwick, 2012 WL 894011, at *1 ("The tie votes rendered the motion to dismiss denied, for lack of a majority, and the finding of an unfair labor practice denied, for lack of a majority.").
2. Evidence on the Record
At the May 18, 2023 hearing, the Union presented exhibits and testimony from Pontarelli, while RIDE did not call any witnesses and rested on one joint exhibit that it entered-the Disciplinary Complaint. (Tr. 36:4-24.) A majority of Pontarelli's testimony for the Union walked through the events leading up to both the ULP-6297 and ULP-6349 charges and the subsequent hearing processes. See id. at 14:4-35:2. Pontarelli submitted and described various documents, such as the ULP-6297 charge, that the Board's Chairman repeatedly clarified were "part of the record anyway." Id. at 14:11-22; see also id. at 25:20-23 ("The answer is the same, that is part of the record, but if you want to enter it as an exhibit, I will enter it.").
One of the only documents presented that was not already on the record was the job description of Pontarelli's position at RIDE, to which Pontarelli testified that if he were to lose his membership to the Rhode Island Bar due to the Disciplinary Complaint, he would not be able to return to work at RIDE. Id. at 30:19-31:18.
The arguments, testimony, and exhibits set forth at the hearing are best summarized by a statement from the Board's legal Counsel, Mr. Kasle:
"Mr. Pontarelli, the Board doesn't accept that because it issued a complaint, that automatically means the charge that you filed was not frivolous. Those two things have nothing to do with it. I understand that's your conclusion and you're entitled to your conclusion, but just so you understand and the parties understand, the fact that the Board issued a complaint on the charge, doesn't necessarily mean that they believe that the charge is frivolous or not frivolous.
"Similarly, Mr. Parker, just because you've put in a disciplinary complaint statement that you believe to be accurate, that has no bearing on whether or not we think what you said in that complaint is frivolous. You need to, as you well know, produce evidence to support your claim. I want to be clear on that because you're both making conclusions about what the Board thinks or what its actions mean, and neither of those conclusions, in my view, are accurate." Id. at 22:24-23:22.
Mr. Pontarelli represented the Union at the hearing, while Mr. Parker represented RIDE.
During the hearing, both parties based their arguments on previous allegations: the Union relied on claims Pontarelli put forth against RIDE in the charges for ULP-6297 and ULP-6349, while RIDE relied on claims that it alleged against Pontarelli in the Disciplinary Complaint.
In support of the ULP-6349 complaint, the Union submitted documents from the initial charge filed for ULP-6297, including filings, memoranda, and exhibits that RIDE and the Union presented during the Board's investigation and hearings of the ULP-6297 charge. (R. Pet'r's Exs. 1-5.) These exhibits include e-mails between Union members Pontarelli and Murphy and their supervisor at RIDE, Chief Legal Counsel Anthony Cottone, regarding their work performance. Id. The Union also submitted the amended ULP-6297 charge and its corresponding filings, including additional filings, memoranda, and exhibits that RIDE and the Union presented regarding Pontarelli's termination. Id. at Exs. 6-10. The Union additionally submitted the complaint issued for ULP-6297, a job description for Pontarelli's position at RIDE (Legal Counsel/Hearing Officer), and the ULP-6349 charge. Id. at Exs. 11, 12, 17.
RIDE submitted exhibits to support its objection to the ULP-6349 complaint, including the full filing of its Disciplinary Complaint with the Disciplinary Board of the Supreme Court of Rhode Island. (R. Resp't's Ex. 1.) The Disciplinary Complaint filing contained twenty-eight exhibits which included various lawsuits and ULP charges Pontarelli brought against RIDE in his personal capacity as well as on behalf of the Union from 1998 through 2022. Id. RIDE additionally submitted a decision from the Rhode Island Superior Court, No. PC-2022-00231, which denied the Union's appeal of the Board's decision to administratively dismiss a ULP charge filed by the Union without issuing a complaint. Id. at Ex. 2. RIDE also submitted Pontarelli's response to the Disciplinary Complaint, which contained Pontarelli's own attempt to file a disciplinary complaint against RIDE's counsel, Matthew Parker, which the Disciplinary Board rejected. Id. at Ex. 3.
RIDE submitted a January 19, 2023 Memorandum and Order from the United States District Court for the District of Rhode Island, No. 1:22-CV-00010-MSM-LDA, granting the defendant's motion to dismiss the case. Id. at Ex. 4. The District Court case involved fourteen separate state administrative complaints filed by Pontarelli against RIDE, Governor Daniel J. McKee, and the Rhode Island Department of Children, Youth & Families (DCYF) alleging the denial of a free appropriate public education to a child in DCYF care who had been placed in a residential treatment facility. Id. Lastly, RIDE submitted its Reply to Pontarelli's Response to its Disciplinary Complaint, which states that Pontarelli ignored RIDE's allegations that he publicly disparaged RIDE; used confidential information to file a federal claim against RIDE; converted work product from RIDE; attempted to embarrass RIDE before the Attorney General; and filed a frivolous Superior Court complaint against RIDE. Id. at Ex. 5.
On June 12, 2023, both parties submitted briefs to the Board. See R. Pet'r's Br.; Resp't's Br. The Union argued that RIDE's Disciplinary Complaint was discriminatory, falsely labeled the ULP charges filed by Pontarelli as "frivolous," and adversely affected Pontarelli by requiring him to defend his protected activity. (Pet'r's Br. 1-3.) The Union asserted that ULP-6349 proves the allegations in ULP-6297 because the Disciplinary Complaint stems from Pontarelli's filing of the ULP-6297 charge and asserted that the Board would not have issued a complaint for ULP-6297 if it was frivolous. Id. at 4-5.
In its brief, RIDE argued that the issues in ULP-6349 are within the jurisdiction of the Supreme Court because the Disciplinary Complaint is before the Disciplinary Counsel, and that the Board should refrain from exercising jurisdiction over ULP-6349. (Resp't's Br. 5-7.) RIDE asserted that it did not violate § 28-7-13 because the Disciplinary Complaint was filed after Pontarelli had been terminated for over a year, and his termination was supported by legitimate reasons like failure to address complaints received about his work. Id. at 8-9. RIDE argued that the Union failed to show any evidence of anti-union animus and failed to meet its burden of proof in showing that RIDE's actions were retaliatory or in response to Pontarelli's ULP charges. Id. at 9-10.
At the Board's September 5, 2023 meeting, Board members Stan Israel, Scott G. Duhamel, and Lawrence E. Purtill argued that RIDE's complaint with the Supreme Court Disciplinary Board was submitted in reaction to Pontarelli's filing for a ULP charge against RIDE and constituted conduct sufficient to support a ULP. (Decision at 5.) In contrast, Board Chairman Walter Lanni, Member Kirby, and Member Winthrop argued that no evidence supported the ULP allegations, noting the gap in time between the filing of the ULP charge in December 28, 2020 and the filing of the Disciplinary Complaint on November 17, 2022. Id. The members in favor of dismissal also asserted that in ULP-6297, the Board had found that RIDE's termination of Pontarelli did not violate the Act. Id. Further, they stated that, while it was proven that Pontarelli engaged in protected activity, there was a lack of evidence to show that the disciplinary complaint was filed in retaliation to that protected activity. Id.
The Board issued the Decision on October 10, 2023, which included the travel of the case, a discussion of the issues, and a "findings of fact" and "conclusions of law" section. See generally id. The Decision described the background and history surrounding the conflict between RIDE and the Union. Id. at 3. The Decision also included a legal analysis of concerted, protected activity under the SLRA and identified Pontarelli's filing of ULPs as a protected activity. Id. at 3-4. The Decision addressed RIDE's jurisdiction argument, asserting that the Board did have jurisdiction because it was not deciding the merits of the Disciplinary Complaint, but rather deciding RIDE's motives behind filing the Disciplinary Complaint. Id. at 4.
Additionally, the Decision addressed the Union's argument that the Board's issuance of a complaint in ULP-6297 conclusively proves that the allegations within the Disciplinary Complaint are false. Id. at 5. The Board clarified that the issuance of a complaint by the Board during the informal hearing process does not indicate a finding for or against one party involved in the ULP case, meaning that the Board's complaint does not validate Pontarelli's claims in the ULP-6297 charge or prove that they are not frivolous. Id. The Decision details the disagreement between Board members and their reasoning for voting for or against dismissal of ULP-6349, as well as the procedural mechanisms supporting dismissal after a tie vote. Id. The final page of the Decision presents findings of fact that reflect the travel of ULP charges and one conclusion of law stating that the matter was dismissed due to a tie vote. Id. at 6.
Considering the record as a whole, including the exhibits, briefs, and testimony presented by the Union and RIDE, there was sufficient evidence on the record to support a tie vote. Both parties submitted conflicting arguments and based large portions of their exhibits and briefs around allegations from either the ULP charges or the Disciplinary Complaint. The Union did not present concrete evidence to show that RIDE filed the Disciplinary Complaint out of anti-union animus, while RIDE did not present definitive evidence to prove that it would have filed the Disciplinary Complaint regardless of Pontarelli's protected, concerted activity. It is understandable that when faced with dueling allegations the Board would be divided. The Board presented limited findings of fact and addressed issues where possible in its Decision, but ultimately could not rule on the merits of the case due to the deadlocked vote.
Without substituting its judgment for the judgment of the Board members, this Court finds that there was sufficient evidence in the record to support Board members' positions on each side of the three to three tie vote. Because the Decision was not affected by clear error of law; clearly erroneous in view of the reliable, probative, or substantial evidence on the record; or arbitrary and capricious as characterized by abuse of discretion, the Board's Decision is not reversible under § 42-35-15(g).
IV
Conclusion
For the foregoing reasons, RIDE Legal Counsel/Hearing Officer Professional Union's Appeal is DENIED. Counsel shall submit the appropriate order for entry.