Firefighter Union Did Not Engage In Unauthorized Practice Of Law

The Town of Little Compton, Rhode Island and the Little Compton Firefighters Local 3957 are parties to a collective bargaining agreement. In the CBA, the parties agreed to submit all grievances to arbitration rather than resort to the courts.

On February 11, 2009, the Union filed two grievances against the Town, alleging that the Town had violated the CBA by failing to maintain certain minimum staffing levels and by not filling a vacant position. After the Town denied both grievances, the Union elected to proceed to arbitration pursuant to the terms of the CBA. In preparation for arbitration, the Union appointed Joseph Andriole, a staff representative from the Rhode Island State Association of Firefighters, to represent the Union in the arbitration. As a nonlawyer, Andriole is not licensed to practice law in Rhode Island.

The Town then filed a complaint in court, seeking an injunction preventing the Union from using a nonlawyer in the arbitration proceeding, alleging that such action would constitute the unlawful practice of law in violation Rhode Island law. The dispute wound up in the Rhode Island Supreme Court.

The Court began its opinion with an assertion of its own authority: “It has long been the law of this state that the definition of the practice of law and the determination concerning who may practice law is exclusively within the province of this court.” The Court then turned a fairly lengthy, and historically quite interesting, review of labor arbitration: Although it is the norm today for disputes involving collective-bargaining agreements to be resolved through arbitration procedures, this has not always been the case. From the late nineteenth century until the 1930s, courts generally viewed arbitration unfavorably, believing that an agreement to arbitrate operated to divest courts of legislatively-granted jurisdiction and, therefore, was illegal and void. First introduced in the garment industry, grievance arbitration spread slowly until World War II, when the attitude of courts and unions toward grievance arbitration began to change. In 1960, the Supreme Court decided three labor arbitration cases, collectively known as the “Steelworkers’ Trilogy.” In these cases, the Court enforced arbitration provisions included in union-management negotiated collective-bargaining agreements and approved the arbitration process for the resolution of disputes arising under those agreements.”

The Court noted that other states allowed non-lawyers to present cases in arbitration: “For example, the Board on the Unauthorized Practice of Law of the Supreme Court of Ohio recently determined in an advisory opinion that a nonlawyer labor consultant, employed by a union, may represent a local bargaining unit in an arbitration process dictated by a collective bargaining agreement, as long as he/she does not engage in those activities that equate to the practice of law. Likewise, New York has concluded that representation of a party in an arbitration proceeding by a nonlawyer is not the unauthorized practice of law.”

The Court found the policies in other states persuasive, holding that “in assessing the benefits of allowing nonlawyer representation in labor disputes, we note that arbitration usually is not equivalent to judicial factfinding. The record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply. Indeed, a basic incentive for the use of arbitration is to provide the parties with a mode of dispute resolution that is expeditious, inexpensive, and informal.

“Further, in contrast to other types of disputes, labor disputes are unique in that the law of the shop rather than strict adherence to legal principles typically controls. Union representatives are often particularly qualified to represent a union based on their familiarity with the multilevel grievance process, their knowledge of the operating procedures, equipment, and training, and their understanding of the formation and evolution of the applicable collective bargaining agreement. This is not to say that licensed attorneys do not have, or are not able to acquire, such knowledge of, or familiarity with, these matters, but simply to acknowledge why union employees often represent unions in arbitrations.

“Moreover, prohibiting this practice and requiring both the labor union and management to retain a lawyer may formalize an arbitration proceeding, delay its conclusion, and raise the cost for both parties. Although the conduct involved in this case may be the practice of law, because of the long-standing involvement of nonlawyer union employees at public grievance arbitrations, we will not limit this involvement at this time. We may in the future, however, and under the supervisory powers of the Court and with the full Court participating, decide the generic issue of nonlawyers participating in public grievance arbitrations.”

In re Town of Little Compton, 2012 WL 424385 (R.I. 2012).