The California State Mediation and Conciliation Service publicizes fact-finding reports that have become public, and I’ve added links to a couple of my published reports on my Published Decisions page. Fact-finding reports differ from arbitration decisions. They are essentially recommended settlements for collective bargaining agreements that have gone to impasse, and the recommendations are often used by the parties to reach agreement and avoid a strike. If the parties don’t reach agreement within 10 days, the reports become public.
Just a reminder that I will be speaking at the Labor Arbitration Institute on June 18 and 19. You can still register at www.laborarb.com. Please join me!
I am heading back to Las Vegas to join the faculty of the Labor Arbitration Institute for their annual Labor Law and Labor Arbitration training on June 18-19, 2018. I will be on several multi-arbitrator panels and will present on the thorny topics of Insubordination and Job Performance. This training is praised by participants and faculty alike. You can find out more at www.laborarb.com. I hope to see you there!
In my last post, I talked about the importance of following timelines to ensure that there are no procedural arbitrability issues related to timeliness. I said, “Untimely grievances will not be heard” by an arbitrator.
Although the rule sounds firm, most arbitrators prefer to reach the merits, and don’t like to ding one party on a technicality. You sometimes hear this framed as, “Arbitrators dislike forfeiture,” meaning they hate forcing one party to forfeit on minor grounds. Arbitrators typically find that a dispute is arbitrable if there is some ambiguity in the language.
When does the time to file a grievance start running? As with so many things, it depends on the contract. The most straightforward answer is, when the employee knew or should have known about the contract violation, and has had a chance to raise it to their supervisor. If the contract language is unclear, an arbitrator isn’t going to impose a timeline. However, an employer argument that the employee unreasonably delayed raising the issue after learning about it might have some merit.
What is “knew or should have known”? This depends entirely on the facts of the case. Obviously, an employee will probably know when they were terminated. On the other hand, an employee might not know that their vacation accrual is wrong until the union educates them about the contract. Parties seeking to enforce a strict timeline should show clear communication about the event triggering the grievance.
What about prospective events? An employer sends a notice on March 1 saying, effective June 1, they are unilaterally changing the schedule? When is the grievance ripe? When the event actually occurs. From March until the end of May, the union may seek to change the employer’s mind, and can hope to do so until it actually goes into effect. A grievance filed after June 1 within the timelines, is timely.
The timeline ends when the contract says it does. But what happens if it falls on a holiday, or a Sunday? Again, this will depend on the facts and how the parties have treated those days in the past, but some arbitrators will apply state law court filing rules to this. For example, if the state law says that court filings that would be filed on a Monday which is a state holiday are still timely if filed the next day, an arbitrator might apply the same rule to the grievance filing deadline.
Another definition that an arbitrator might need clarification on is whether the parties use calendar days or business days. For example, a five-day deadline will have very different consequences if it’s five calendar days rather than five business days. A union representative who isn’t aware of the meaning of their own contract could very easily failed to file their grievance in a timely fashion.
It is precisely this type of problem that arbitrators see most often. Someone forgot, sent it a day or two late, sent it to the wrong person or made some other minor mistake that causes the grievance to be untimely. Human error is no excuse, if the timelines have been consistently enforced in the past. Again, any lax enforcement will probably excuse the human error, but it will be an evidentiary question.
In my next post, I will discuss other types of procedural arbitrability issues. In the meantime, drop me a note if you have any questions or comments. Thanks!
Please download my most current resume by clicking on this link: Dooley CV October 2017. It’s been updated to reflect my new panel appointments and public service. My rates and services remain the same. I look forward to working with you.
Last night, the Oakland City Council approved the Mayor’s and the Selection Panel’s appointments to the new Police Commission, which was formed with the overwhelming support of Oakland voters last November. Mayor Libby Schaaf appointed me as an alternate police commissioner, meaning I will sit as a commissioner if another mayoral appointee is absent or steps down from the commission. I am honored to serve the City I love and look forward to the challenges this appointment may offer. I will be revising my resume to reflect this change in the coming days.