Monday, February 13, 2012

Case on "Nonlawyers" in Labor Arbitration Calls for Statutory Action


Commentary
Matthew M. Bodah, Ph.D.
Professor of Labor Relations
Research Director, SLRC and 
Chair, Economics Department

Recently the Rhode Island Supreme Court issued a decision in the case In re Town of Little Compton (Supreme Court No. 2011-101-MP).  The sole issue in the case was whether a “nonlawyer” union representative was guilty of the unauthorized practice of law in representing grievants in a labor arbitration hearing.  The court prudently determined that any “technical” violation of the statute governing the unauthorized practice of law was trumped by years of labor relations norms and the universal practice of other states.   Justice Gilbert V. Indeglia concluded his decision on behalf of a three-member panel of justices by stating “[A]lthough the conduct involved in this case may be the practice of law pursuant to [Rhode Island statute], because of the long-standing involvement of nonlawyer union employees at public grievance arbitrations, we will not limit involvement at this time.”  In his decision, Justice Indeglia also wrote that “neither we nor the parties herein were able to uncover any jurisdiction that has specifically declared that nonlawyer representation in labor arbitrations constitutes the unauthorized practice of law.” 
           This case began three years ago when International Association of Firefighters Local 3957 filed two grievances concerning a staffing issue on behalf of members in the Town of Little Compton.  Joseph Andriole, a staff representative of the Rhode Island State Association of Firefighters, was assigned to handle the case, which prompted the town to file a motion to have him removed based on his lack of a license to practice law.  The motion was denied and the arbitration proceeded with an eventual decision in favor of the town.  Prior to the decision, however, the town had brought the issue of Andriole’s status to the attention of the Rhode Island Bar Association’s Unauthorized Practice of Law Committee, which found him in “technical violation” of Rhode Island law and reported this violation to the state supreme court for further action.
           In making impressive use of a number of scholarly articles and reports from other states, Justice Indeglia avoided what could have been a tragically ironic decision.  Labor arbitration was, after all, developed as a quicker, less expensive, and less technically daunting alternative to formal litigation.  Nonlawyers on both sides of the table have always been broadly accepted in the process.  Many of arbitrations earliest practitioners were nonlawyers—often industrial relations scholars or economists—who approached each case as an extension of the collective bargaining process itself; an opportunity to clarify the parties’ intentions in negotiations and develop working standards for the constructive conduct of labor relations on the shop floor.  In fact, some claim that the process has veered from its problem-solving roots and has become too entangled in the norms of litigation, a point made by Reginald Alleyne in his article, cited by Justice Indeglia, entitled “Delawyerizing Labor Arbitration.”
           If there is one troubling aspect to Justice Indeglia’s decision, it is in its lack of finality.  As stated above, he wrote that the court will not disturb the current practice “at this time.”  But he continues:  “We may in the future, however, under the supervisory powers of the Court and with the full Court participating, decide the generic issue of nonlawyers participating in public grievance arbitrations.”  The General Assembly should immediately forestall any need for the court to revisit this matter.  It could do so by adopting statutory language similar to California’s and cited in Justice Indeglia’s decision:  “any party to an arbitration arising under collective bargaining agreements…may be represented in…those proceedings by any person, regardless of whether that person is licensed to practice law in this state.”  Action by the legislature now could avoid an unnecessary waste of resources, including the court’s valuable time, in the future. 
           

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