In this case, filing a second set of grievances plays an important role. As long

Question

In this case, filing a second set of grievances plays an important role. As long as the second set is identified as reinstating one for the first set, the arbitrator would not hold them arbitrable. Hence, they would have to be clearly separate from the first one to avoid the cutoff date of back pay to be reset.

In my view, the arbitrator should have decided the other way as it would result in fair compensation for the employee and also notify the company of its tardiness as well as inadequacy to deal with employee issues since they let the time limit go lapse without any action or justifiable excuse.

Phrasing grievances narrowly would not be a positive step from the union. These would constrict the outcome as well as benefits received from the settlement to the individual named in the grievance. Hence, from the union's point of view this would be a wasted effort as they are all seeking the same benefits. Filing similar narrow grievances for each and every employee would also not be viable as it could take a lot of time for them to be cleared. They need to factor in the short lapse time and be aware of the way to get their grievance arbitrated successfully.

Explanation / Answer

Background:

ARBITRABILITY

Facts:

Most grievance procedure clauses of collective bargaining agreements provide time limits within which each step must be accomplished, and they usually state that any failure of the union to proceed from one step to the next means that the company’s last answer to the grievance is accepted. An attempt to revive a lapsed grievance may then be rejected, not on the merits of the complaint, but on procedural grounds.

A difficulty sometimes arises, however, when a grievance alleges a continuing violation. When the claim is that men are being worked regularly out of their classification, or that they are not getting the proper rate for their work, it might be argued that the basis for a new grievance arises every week. Whether that argument has merit depends, of course, on many circumstances.

One such case arose during the summer of 1965 at a tractor and agricultural implement manufacturing plant. A few months earlier, three grievances, each filed by an employee who claimed he was entitled to a 20-minute paid lunch period and that he wasn’t getting it, were processed through the fourth step of the grievance procedure without a settlement. The union notified the company of its intention to send the grievances to arbitration, but it let the contractual time limit (five days) go by without taking that action. There was no excuse for the delay, and the union acknowledged that the language of the agreement (“A grievance must be appealed to arbitration within the time limits … or the grievance shall be considered settled on the basis of the last answer given”) stood as a barrier to arbitration. Nevertheless, management was asked to overlook the delay. Management refused, and the matter was dropped for the time being.

About three months later, the same employees filed grievances again on the same issue, and when the union tried to press them to arbitration, the company contested. “Those are stale grievances,” the industrial relations director asserted, “and we don’t have to defend ourselves on the merits before an arbitrator. The contract contains time limits to compel the union to move expeditiously. They shouldn’t be permitted to evade the contract by the simple expedient of re-filing the same grievances.”

“The time limits don’t apply in a situation like this,” the union attorney answered, “because the violations are of a continuing and recurring nature. Every time these men are deprived of a paid lunch period, a new cause of action arises. The contract has a cutoff date for back pay and if this grievance is upheld, the company won’t have to compensate the grievants for their losses back to the earlier grievances. But that’s the only limitation on their right to correct the contract violations.”

The conflicting views of procedural arbitrability were argued before an arbitrator, and he finally retired to consider this threshold question.

Decision:

The company was upheld. The arbitrator pointed out that the new grievances were not significantly distinguishable from the earlier ones. He wrote: “The obvious purpose of the filing of the second set of grievances was to reinstate in the grievance procedure the disputes covered by the first set of grievances.” Although the situations complained of were continuing in nature, and although the cutoff date for back pay would be later under the second grievances than under the first, this was not enough to make the second grievances identifiably separate from the first.

Question

It seemed to be a fact in this case that the second set of grievances was identical to the first. Might the arbitrator have held them arbitrable if they were slightly different?

If the union is foreclosed from carrying a certain issue to arbitration because it had once let a time limit lapse, it may result in some employee getting less money or fewer benefits than the contract calls for. In view of this apparent injustice, do you think the arbitrator should have decided the other way?

In view of the short time limit and the possibility that a lapse might foreclose the union from arbitrating important issues, would it be wise from the union’s point of view to phrase every grievance as narrowly as possible so that the outcome of the case will apply to the individuals named and to no other? Would there be any disadvantages, from the union’s viewpoint, of this policy?

Related Questions

Navigate

• Browse (All)
• Browse I
• Subjects

Integrity-first tutoring: explanations and feedback only — we do not complete graded work. Learn more.