Example when a grievance filing is late

In this 2018 example, note that AFSCME's grievance where the employer gave AFSCME workers less compensation increase than more favored non-AFSCME (Teamsters) was almost voided by negligently late filing. 1458 words addressing this as the #1 issue at dispute were barely enough to prevail. 

The Employer argues that the Grievance, underlying this case, was filed untimely and violated the contractual timelines. The relevant contract language appears in Article 4 - Grievance Procedure:

Section 4.02. Step 1 (Informal) Any employee or union representative who believes the provisions of this Agreement have been violated may discuss the matter with the employee's immediate supervisor as designated by the Employer in an effort to avoid a grievance and/or resolve any dispute. While employees are encouraged to utilize the provisions of this subdivision, nothing herein shall be construed as a limitation upon the employee's union representative respecting the filing of a grievance at Subd. 2 (Step 2) of the grievance procedure.

Subd. 2. Step 2 (Formal) If the grievance has not been avoided and/or the dispute resolved by the operation of Step 1 and the Union wishes to file a formal grievance, the Union representative, shall file a written grievance with the affected department head or with his/her designee. The grievance must be filed within twenty-one (21) calendar days of the event which gave rise to the grievance or within twenty-one (21) calendar days of the time the employee or Union reasonably should have knowledge of the occurrence of the event, whichever is later...

MPRB is alleging that the Union's formal, written Step 2 Grievance, filed on March 13, 2017, was untimely, in light of the contractual language, as above. In reviewing the events that precipitated the filing of the Grievance, I note that the Record evidence establishes that the applicable labor agreements for both AFSCME and the Teamsters, for the 2016 - 2018 calendar years, were adopted and implemented by the Parties on May 18, 2016. Both agreements were retroactive to January 1, 2016.1

In about December, 2016, the Union approached MPRB management and advised them that there appeared to be a problem with the amount of scheduled general wage increases in the AFSCME agreement, as compared to the increases in the Teamster agreement. More specifically, the Union contended that, by its calculations, employees under the Teamster contract were receiving a higher general, across-the-board or cost-of-living percentage wage increase than those employees covered by the AFSME agreement for the contract period 2016-2018.2

The Union alleged that the percentage differences in those respective wage increases potentially violated Article 5, Appendix A, Other Provisions, footnote 1 of the current applicable labor agreement. That footnote provision provides that;

1 For the duration of this collective bargaining agreement the Board [MPRB] agrees to apply any increase in paid days off, cost of living increase, or step movement to this group, if any such agreement is reached with any other unit either represented or non-represented, as a whole, with the exception of Police. 

During the course of this proceeding, the Parties have referred to the above provision as the "Me Too" clause. I shall also use that term herein.

The Union and MPRB management officials subsequently met informally on December 28, 2016, February 27, 2017 and March 13, 2017 in an effort to mutually resolve the issue and avoid a formal grievance. According to the Union's notes of these meetings (Union Exh. 1), during the February 27 meeting, the Union advised the MPRB representatives that the Union clearly acknowledged and understood the contractual grievance timelines and that its efforts to try to informally resolve the situation should not interpreted as a waiver of its right to formally grieve the matter. According to the notes, Jennifer Ringold, the Deputy Superintendent and senior management representative present for MPRB, responded by saying she "understood, there is no problem there".

During her testimony in the hearing, Ms. Ringold was specifically asked if she had waived MPRB's pending objection to the grievance's timeliness. She answered, "No. There was a question of whether the meetings that we had had constituted as being part of the grievance procedure and I indicated I didn't believe so, that we were still just in communication." Ms. Ringold did not otherwise specifically address the alleged statements attributed to her in the meeting notes of February 27, 2017 (Union Exhibit #1)

1 Wage actions in the AFSCME agreement were retroactive to April 1, 2016, but such actions were retroactive to January 1, 2016 in the Teamsters agreement. The Record contains no explanation for the difference in retroactivity.

2 In this bargaining context, these three terms appear to be used historically, informally and interchangeably to refer to the same basic wage or salary increase process/procedure and, therefore, I shall regard them as synonymous in this matter. The precise definition of the terms appears to ultimately rest with the perception of the recipients.

Apparently at the conclusion of the meeting of the Parties on March 13, 2017, it became clear that there would be no informal resolution of the issue and the Union announced that it would be filing a class action grievance later that day.
Accordingly, later that same day, March 13, 2017, the Union filed its formal, written Grievance at Step 2 of the contractual grievance procedure.
According to the notes, the Parties met on April 17, 2017 to formally discuss the Grievance at Step 2 of the contractual Grievance procedure. No resolution was reached and no issue was raised by MPRB about timeliness of the Grievance.
The Parties met again on May 25, 2017 to discuss the Grievance at Step 3 of the contractual grievance procedure. Again, no resolution was reached and no timeliness issues were raised by MPRB.
There was a Step 4 meeting on June 21, 2017 and, again, the Employer denied the grievance on its merits and there was no mention of any timeliness issue or question. The Union subsequently requested arbitration and no timeliness questions were raised.

Discussion and Conclusion:
Based upon the foregoing, it is clear that once the Union informally raised the wage issue with MPRB in December 2016 as a possible violation of the Me Too contract provision; both Parties jointly set about attempting to resolve it, without resorting to a formal grievance at Step 2 of the Grievance Procedure.
Both Parties were cognizant of the contractual grievance timelines, but per the comments and discussion that took place in the February 27, 2017 meeting, there appears to have been a mutual agreement regarding those timelines.
Both Parties appear to have recognized that they were dealing with a significant issue, with potential broad and widespread effects and they were going to take a relaxed view of any timelines that might impede a potential informal resolution.
It is also clear from the Record, that both Parties acknowledged that if their efforts failed to resolve the issue informally, it would have to be ultimately addressed and resolved in the context of the formal contractual grievance procedure.

I also note that MPRB argues that because the Union was aware of the existence of the Teamster labor agreement on May 18th 2016, it should have filed its grievance much earlier than March 13, 2017. As indicated above, the contract language in Article 4 - Grievance Procedure, states that "...The grievance must be filed within twenty-one (21) calendar days of the event which gave rise to the grievance or within twenty-one (21) calendar days of the time the employee or Union reasonably should have had knowledge of the occurrence of the event, whichever is later..."

In this instance, unlike a specific point-in-time event such as a disciplinary action, the nature, scope and complexity of this issue required careful research and analysis by the Union before reaching the conclusion that the situation might constitute a contract violation and raising it directly with MPRB.

Accordingly, it does not appear that the Union took an inordinate or unreasonable period of time to investigate and assess the issue, before approaching MPRB to try to informally resolve it. Accordingly, I find this MPRB argument to be without merit. I also note that while both of the labor agreements were concurrently adopted and formalized on May 18, 2017, many aspects of the agreements were not put into practical operation until June or July.

With respect to the overall Employer contention and allegation that the Grievance in this matter is contractually untimely filed, I also find this argument to be without merit. Based upon the evidence and discussion above, it is clear that both Parties tried diligently to resolve the issue informally, but that they both recognized and agreed that if those efforts failed; the issue would ultimately and subsequently have to be resolved within the formal portion of the contractual Grievance Procedure.

I, therefore, conclude that the Grievance, as formally filed by the Union on March 13, 2017 at Step 2, is timely and that further proceedings to address and determine the merits of that issue are appropriate.3

3 Valero Refining Co.-Tennessee, 137 LA 284 (Moreland, 2017).