In my prior posts, I talked about why we have labor arbitration, what procedural arbitrability is, and how arbitrators handle timeliness issues. I’ll discuss that again in a moment, but first I want to mention that there are other kinds of procedural arbitrability issues, that I’ll discuss now. Two particular procedural issues that arise are (1) the form of the grievance and (2) the manner of delivery. Both can also be dictated by the contract. The form of the grievance could be a pre-printed form, or it could be a letter to management, or it could be a simple email. It could even be a phone call. The parties usually agree on what form the grievance will take, but they may not. If they don’t agree, then it may be a procedural arbitrability issue. For example, if the union sends an email and the employer says they had to file a preprinted form, the arbitrator will decide if there was a proper grievance.
The manner of delivery is also usually agreed upon, or even stated in the agreement. Maybe it must be sent by fax, or email, or certified mail. If the contract isn’t specific, then the practice of the parties will govern. The types of questions that occasionally arise – Must it be faxed to a specific office? Must a specific form be sent certified mail? Or is an email saying, “We’re moving John’s grievance to step 3,” sufficient? – seem nit-picky, but for unions and companies with established practices and large workforces, it can be hard to keep track of everything unless the correct procedures are followed. At least, that’s what one party will argue.
As a practical matter, it makes sense to file or move a grievance to the next step at the earliest possible time. A grievance can always be withdrawn, but a union who fails to follow the administrative steps of the grievance procedure could be left holding more liability than necessary. At the same time, Employers should be aware that playing gotcha with the grievance procedure will sour labor relations and put the union in an unnecessarily difficult spot. This is particularly true when the union cannot get in touch with a grievant because of the grievant’s incapacity, such as insanity (one case in the materials), hospitalization or incarceration.
Some contracts have specific consequences for failing to respond in a timely fashion. For most of this, we’ve assumed that the union didn’t timely move the grievance, but an employer who fails to respond to a grievance may be waiving arguments, become subject to automatic next steps, or even lose the grievance.
One party can waive arguments by failing to raise procedural defects until the arbitration hearing, but there isn’t a hard and fast rule on this. Different arbitrators have ruled differently on this question but as a practical matter, it’s better to raise procedural arguments throughout the grievance procedure.