Sunday, February 2, 2014

Time limits in the grievance process- Three courts address the issue

Three recent decisions address the impact of time limits in  grievance procedures

In AFSCME Council 25 and Local 1103.14 v. Charter Township of Harrison, a Michigan Court of Appeals affirmed  a lower decision setting aside an arbitrator's award. The Union had filed a grievance concerning the calculation of several employees' service credit for pension purposes. Pursuant to the cba, the Township was required to respond to the grievance within ten days. The contract also provided that should either party fail to act within the contract's time frames "the grievance will be considered decided in favor of the opposite party." Notwithstanding this language, the Arbitrator determined that the grievances were not arbitrable because the grieved action had been taken by the pension board, not the Township.

The Union sought to set aside the award, and the lower court agreed. The Township appealed, and the Court of Appeals has affirmed that decision. In concluding that the Arbitrator had exceeded his authority under the cba the Court observed:

In the instant case, in order to avoid the result required under the unambiguous terms of the CBA—an award for plaintiffs—the arbitrators added new requirements to the agreement. Specifically, the arbitrators added a requirement that the dispute involve an actual violation, misinterpretation, or misapplication of the CBA—as opposed to an alleged one—to even be subject to arbitration in the first place, contrary to the clear language of the CBA.
The Township's failure to respond to the grievances within 10 days triggered the CBA's default provision, which mandated that the grievances be decided in plaintiffs' favor. By refusing to apply the clear and unambiguous language of the CBA and adding new requirements not present in the CBA, the arbitrators' awards were beyond the scope of the authority granted them under the agreement, and did not draw their essence from the agreement, but instead from the rules created by the arbitrators. Therefore, the trial court properly vacated the arbitrators' decisions and granted summary disposition in favor of plaintiffs.

In County of Warren v. PBA Local 331, the NJ Appellate Division affirmed a lower court decision  setting aside an arbitrator's award in favor of the PBA. The Union had filed a grievance concerning certain retirement benefits. The County argued that the PBA missed a ten day deadline for the processing of the grievance and sought to have it dismissed. The Union maintained that it had provided the County with the opportunity to raise a timeliness issue when the grievance was filed but that the County had not done so. The Arbitrator concluded that the County had waived the right to object to the grievance. The County sought to set aside the Arbitrator's award, and the lower court did so, finding no contractual support for the Arbitrator's conclusion. On the Union's appeal, the Appellate Division affirmed, noting:

Having found the grievance untimely, the arbitrator "read into" the [Agreement] a provision not found there, that the ten-day period for filing a grievance is waived if the County fails to object promptly to the untimely filing. In light of the express terms of the [Agreement] regarding the timelines for the filing of a grievance and the requirement that extensions of such periods be by mutual consent, the arbitrator's interpretation is not reasonably debatable. ... Accordingly, we affirm the order vacating the arbitration award substantially for the reasons expressed by Judge O'Connor.

Finally, in Phillips 66, Bayway Refinery v. Teamsters Local 877, the US District Court in NJ confirmed one award, and dismissed without prejudice a request to vacate another. The Union had filed an initial grievance concerning certain wage payments. Arbitrator Patrick Westerkamp rejected the Union's grievance as untimely. He suggested, however, that the Union might pursue a new grievance on a continuing violation theory. Such a grievance was filed, but Arbitrator Stanley Aiges rejected the Union's efforts to use the theory. Arbitrator Aiges determined "[T]he Union cannot be allowed to directly violate the time limits imposed upon it under the [CBA], and then be allowed to indirectly circumvent those time limits by filing a new grievance on the identical issue." Arbitrator Aiges noted that the cba provided that the Union "forfeits and waives" its right to arbitrate a grievance if it does not abide by the cba's time limits. The District Court granted the Employer's unopposed motion to confirm Arbitrator Aiges award. The Court rejected, however, the Employer's effort to vacate a decision of Arbitrator Jeffrey Tener. Arbitrator Tener had determined that a grievance was subject to arbitration, but left determination of the merits to a later award. Holding that the Award was not final, and that it would be inappropriate to review an interim award, the Court dismissed the motion to vacate without prejudice.

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