An Arbitrator recently held that Union’s failure to timely appeal to a grievance step prior to arbitration, resulted in dismissal of case. The decision, Erie County, Ohio Department of Job and Family Services v. AFSCME Local 3616.
This case proceeded under the authority of the parties’ collective bargaining agreement which presented the grievance and arbitration procedures to be followed by the parties. This particular agreement established three grievance steps: the initial reporting of a grievance followed by grievance hearings at step two and step three, leading to step four that allows a mediation of the unresolved grievance. Step five empowered either party, within ten working days of the receipt of the step three answer, to demand final and binding arbitration of the unresolved grievance. Like most collective bargaining agreements, the Agreement provided that the decision of the arbitrator was to be final and binding upon the parties, but the arbitrator has no power to rule contrary to, amend, add to, or eliminate any provision in the parties’ collective bargaining agreement.
The agreement provided that bargaining unit employees shall not be disciplined without just cause. The employee in this case made a threatening comment about a coworker, in addition to failing to meet prescribed standards of work and creating an intimidating work environment, which led to the employee being placed on paid administrative leave. The employee was subsequently demoted.
A grievance was filed arguing that the demotion was without just cause. The demotion grievance made its way through the first two steps of the parties’ contractual grievance procedure. However, the Union did not appeal the step two decision to step three in accordance with the procedures established by collective bargaining agreement, skipping to a demand for arbitration. The employer argued the grievance was not arbitrable because the Union failed to follow the grievance procedure as specified in the parties’ collective bargaining agreement and there was not a waiver of step three in the grievance procedure. The Union’s notice of intent to arbitrate did not fit any reasonable interpretation of the procedures specified in the parties’ agreement. Additionally, the notice of intent to arbitrate was not filed by the Union within ten days after the purported step three decision was issued.
The arbitrator found the Union’s failure to adhere to the contractual grievance process warranted a ruling in the Employer’s favor. The arbitrator stated the language of the parties’ agreement is clear and unambiguous; the parties must first attempt to resolve the dispute under steps one through three before bringing the case to arbitration. Because the Union failed to timely appeal step two, they had failed satisfy the procedural requirements to make the case arbitrable.
In addition to the merits of the dispute, Employers should also carefully consider the contractual grievance process outlined in the collective bargaining agreement. The failure of a party to adhere to the contractual grievance process could mean the matter is not arbitrable.
The Employer in this case was represented by attorney Marc Fishel. Attorneys at Fishel Downey Albrecht & Riepenhoff routinely advise and defend employers in collective bargaining and arbitration matters. For questions about this case or any other matter, please contact Marc Fishel (mfishel@fisheldowney.com) by email or phone (614) 221-1216.