In my last post, I talked a little about the purpose of arbitration, and mentioned that sometimes, one party or the other challenges whether a dispute can be arbitrated. This is a question of “arbitrability,” and there are two types: procedural and substantive. In this post, I will be talking about Procedural Arbitrability.
As the name suggests, procedural arbitrability means that one party believes that there is a procedural error, such as timeliness. Arbitrators and courts have held that it is up to the arbitrator to determine whether there is a procedural arbitrability issue.
The most common procedural arbitrability issue is timeliness. Timeliness concerns whether both parties have met the timeline required in their agreement. For example, the union might be required to file a grievance within 10 days of learning about the incident that causes a dispute, and the employer might be required to respond to the grievance within 7 days of receiving it. Most arbitrators in most cases strictly enforce the timeline set out in the grievance procedure, where the parties have consistently enforced those requirements. Untimely grievances will not be heard. Time limits are generally treated as jurisdictional; in other words, if the timeline wasn’t met, the arbitrator doesn’t have the authority to hear the merits of the case. This is less straightforward than it sounds.
Timelines must be consistently enforced. If the parties have been lax, or the practice has been inconsistent, the parties should be prepared to present evidence supporting their position about how the parties have treated timelines in the past. For example, the employer might show that every grievance that was filed after ten days had passed was denied, while the union might show that the employer gave them a one-day grace period on many occasions in the past. The arbitrator will consider this evidence in deciding whether the grievance in arbitrable.
Timelines can be waived by mutual agreement. For example, in one case, a union steward was on vacation when a union member was terminated and didn’t return until after the deadline for filing the grievance had passed. He wrote the grievance and brought it to the supervisor, asking that the supervisor agree that the grievance be “deemed timely,” because of his absence. The supervisor agreed, and they proceeded through the grievance procedure. At the arbitration hearing, a human resources manager testified that the supervisor had not authority to agree to waive the timeline and that the grievance was untimely when it was filed a few days late. I found that, if the supervisor had the authority to discipline employees and receive the grievance in the first place, he had the authority to agree to waive the timeline, and in fact, it was good for their labor relations that he did so. The discipline was upheld on the merits and the union steward and supervisor continued to work together harmoniously to resolve disputes.
In my next post, I will continue to discuss procedural arbitrability. Please let me know if you have any questions that I can answer in a future post!