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.[1]
Questions for Discussion
1.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?
