There are only a few certainties in the world of labor law: employees are not perfect people; contract language is always open to interpretation; and if an arbitrator is selected for a grievance, they are going to hear that grievance in its entirety, barring settlement before the hearing. While employers have the ability to challenge the arbitrability of grievances from both a substantive and procedural standpoint, rarely is it determined that a union’s grievance is not arbitrable.
In Teamsters Local 320 and County of Ramsey, Minnesota, the employer challenged the Union’s grievance on both procedural and substantive fronts after the union filed a grievance over non-existent contract language one day after the contract’s timelines for grieving expired. The union was grieving the short-term temporary assignment of an Assistant Probation Officer to a Probation Officer position, when the parties had only agreed to language pertaining to temporary assignments expected to last longer than six months. The union alleged that the parties had verbally agreed to post all temporary assignments during a labor-management committee meeting, and that a past practice also existed.
The parties agreed to submit written briefs on the matter on which the arbitrator could decide. The county argued against the arbitrability of the grievance by relying on the contract language agreed to by the parties, which stated that the county would follow certain procedures for posting an assignment, but the county’s decision could not be grieved. It also relied on the grievance procedure language that stated grievances must be filed within 21 calendar days “after such alleged violation has occurred,” and that the union’s reliance on statements made by the employer in a labor-management committee had a chilling effect on relations in that committee.
The union countered by arguing that there was no contract language relating to temporary assignments less than six months, but a verbal agreement and past practice between the parties existed regarding posting requirements for those assignments. It relied on the County’s Step 2 response that the issue had only been discussed multiple times and that “confusion remains regarding if a firm agreement exists and…what the specific terms of the agreement are.” It argued that if the matter went to hearing, it could establish either a past practice or verbal agreement that would control.
Regarding the County’s timeliness argument, the union countered with everyone’s favorite excerpt from Elkouri, “[A]ll doubts should be resolved against forfeiture of the right to process the grievance.”
In deciding for the union, Arbitrator Daly stated that because he received no testimony or evidence on the existence of a verbal agreement or past practice, it would be necessary for him to hold a hearing in order to determine whether any binding agreements existed. In regard to the timeliness dispute, the arbitrator found that the union filed its grievance only one day after the County responded to an initial inquiry from a union steward about the matter (there was no discussion as to what kept the union from filing a grievance on any of the 21 days prior).
Challenging arbitrability is always an uphill battle for employers. Arbitrators will always lean toward finding arbitrability, rather than denying justice to someone who was possibly wronged, even if the union pulls an alleged agreement out of thin air. The employer took a good approach in its efforts to keep a hearing from going forward, and put forward many convincing arguments. Arbitration is a costly, time-consuming process, and if employers can avoid an arbitration by relying on contract language, they should do so. Just because one arbitrator finds a matter to be arbitrable does not mean that others will come to the same conclusion in the future.
There are many paths employers can take to avoiding and winning in the arbitration process. If you or your organization need assistance with either, contact the Wiley Law Office, for labor arbitration experience that works.