Last Thursday, the Rhode Island Supreme Court issued a long awaited ruling on the legality of non-lawyer union officials representing local unions in grievance arbitrations. In In re Town of Little Compton, the court concluded that it is permissible for union officials who are not lawyers to represent the union.
The case arose in 2009 when Little Compton Firefighters, IAFF Local 3957 filed a pair of grievances over minimum staffing. After negotiations failed to resolve the dispute, Local 3957 filed for arbitration and designated Vice President Joseph Andriole of the Rhode Island State Association of Firefighters (RISAFF) as their representative.
Seeking to gain a tactical advantage (and certainly not because they were genuinely concerned that the firefighters’ might be denied a fair hearing), the town filed suit in superior court to block the arbitration and have the court declare it illegal for the union to use a non-lawyer to represent it. The court refused to restrain the local’s use of Mr. Andriole. The town later filed a complaint with the Supreme Court’s Unauthorized Practice of Law (UPL) committee alleging Mr. Andriole had unlawfully practiced law in the state.
In 2010, the UPL committee concluded that Mr. Andriole had committed a technical violation of the statute prohibiting the practice law without a license, but concluded that since the violation had been consistent with a widespread practice in labor, it would defer to the Supreme Court for guidance in how to proceed.
In reaching its conclusion, the Supreme Court seemed to struggle with what should have been a relatively simple and common sense approach of allowing a union representative to … represent the union. Instead the court referred to the matter as “an exquisitely close case” – despite the fact that no other jurisdiction in the United States has ever ruled that labor unions cannot have non-lawyer union representatives handle grievance arbitrations.
Nevertheless, the court concluded that Mr. Andriole was not guilty of the unlawful practice of law. The court stopped short of declaring that unions may engage non-lawyers to represent them and limited the holding by suggesting that the issue may be reconsidered in the future.
Here is a copy of the decision. In re Town of Little Compton (Opinion)
What concerns me about the decision (besides the fact that the court struggled to justify something that the rest of the country has been uncharacteristically unanimous about) is the lack of discussion about the right of employees to engage in concerted activities. If the court came out the other way, where exactly would that right of employees to work together for their common good start and end? If only a lawyer could represent the union at a grievance hearing, what about steps that occur prior to the hearing that – if not handled properly – could jeopardize the ability of the union to take a grievance to arbitration? Could a non-attorney union steward be prohibited from giving advice to a union member? After all, the steward might be giving “legal advice”… interpreting the contract, or even legal terms such as past practice or substantive arbitrability. Could a non-attorney union rep be prohibited from processing a grievance at the next to the last step, or the 2nd to the last step, or maybe even the first step – if legal arguments must be made, or evidentiary matters arise? Would union representatives be prohibited from negotiating with an employer without an attorney by their side? Where would the line be drawn?
Fortunately the RI Supreme Court got it right, but it certainly is less than encouraging that they seemed to struggle with what should be an obvious ruling.