Federal Bureau of Prisons
119 LA (BNA) 1812
FMCS Case No. 03/10025
March 30, 2004
Matthew M. Franckiewicz, Arbitrator*
Article 31—Grievance Procedure
Section g. After a formal grievance is filed, the party receiving the grievance will have thirty (30) calendar days to respond to the grievance.
1. if the final response is not satisfactory to the grieving party and that party desires to proceed to arbitration, the grieving party may submit the grievance to arbitration under Article 32 of this Agreement within thirty (30) calendar days from receipt of the final response; and
2. a grievance may only be pursued to arbitration by the Employer or the Union.
R__ filed a grievance dated November 27, 2002, based primarily upon a seven day suspension issued to him by the Employer on November 6, 2002. It is undisputed that the Employer did not provide a timely response to either R__ or the Union.
R__ thereafter filed another grievance, dated December 30, 2002 (but apparently not filed until January 8, 2003), protesting the lack of an answer to the original grievance. As a remedy this later grievance sought that the remedy requested under the original grievance be granted, and that the warden be disciplined.
The Agency's answer to the latter grievance acknowledged that the answer to the initial grievance was not provided within the contractual time period, but denied the remedy sought under the second grievance.
By letter dated March 12, 2003, the Union appealed to arbitration. The letter states:
I am in receipt of the Response to a Grievance filed by R__ on January 8, 2003, to Harley G. Lappin, Mid-Atlantic Regional Directory, alleging management at the Federal Correctional Institution (FCI), Morgantown, West Virginia, violated Article 31 of the Master Agreement. A copy of the Response is attached. On February 12, 2003, the Union conducted a meeting and discussed the above captioned Response. During the meeting a Motion was made, and seconded to take the Grievance to Binding Arbitration. A vote was cast and an overwhelming majority voted to take the Grievance to Binding Arbitration.
However, due to time limitations, we must notify you in writing of our intention to request arbitration in this matter. The membership feels that the Response was not acceptable to the seriousness of the grievance filed.
A disagreement developed between the parties regarding the proper scope of the current case. The Union seeks a default remedy for the original grievance, but if that remedy is not granted, that the original grievance be resolved on its merits. The Employer contends that the case is limited to the question of the remedy available under the second grievance, arguing that the March 12, 2003 letter appeals only the second grievance to arbitration, and that the time frame for appealing the first grievance to arbitration has passed.
The parties mutually desired that I first resolve this issue. At the hearing, I announced my conclusions and outlined my reasoning, and offered to issue a written decision setting forth my analysis in more detail if desired.
The facts pertaining to the procedural issue are not in dispute. The answer to the original grievance was untimely, and therefore the second grievance, protesting this untimeliness, has merit.
To the extent that the grievance seeks as a remedy that the warden be disciplined, I deny the requested remedy. I do not believe that an arbitrator has the authority to require an employer to impose discipline on one of its management representatives.
I also deny the requested remedy of a default award that would, in effect, sustain the initial grievance without reference to its merits. Forfeitures have long been disfavored in arbitration. As Arbitrator John F. Sembower said in Dewey-Portland Cement Co., 43 LA (BNA) 165, 168 (1964):
Unless a forfeiture is expressly provided in an agreement, an arbitrator should be slow to invoke it. Often it is said in the courts that, “equity abhors a forfeiture.”
This echoes the universal preference for a so-called “decision upon the merits” rather than by technical default, if at all possible. So the contract's language should be strictly construed in this respect, and a default found only if there is no other course.
Here the collective bargaining agreement sets a time limit for submitting an answer to a grievance, but does not specify that the Employer is foreclosed from contesting the grievance on the merits by failing to meet that time limit.
In application of the same principle, however, I find that as a remedy for the Employer's untimeliness, any alleged untimeliness in submitting the first grievance for arbitration must be treated as excused. If I did otherwise, I would be refusing to impose a forfeiture against the Employer, while imposing one against the Union.
Although the Union's March 12, 2003 arbitration demand initially refers to the Employer's response to the second grievance, that response itself references the response to the first grievance. Thus when the Union stated an intention to arbitrate “in this matter” a fair reading seems to me that the Union desired to submit all the unresolved issues that could be said to constitute “this matter” to arbitration. Moreover, to the extent the Union's letter is ambiguous, that ambiguity is itself the product of the Agency's untimely response to the first grievance. Had the Employer submitted its answer to the first grievance within the contractually mandated period, there would have been no second grievance, and no doubt as to what issues the Union was processing to arbitration.
Finally, insofar as the Agency contends that any attempt to move the earlier grievance to arbitration is untimely, a party cannot enforce contractual time limits unless it complies with those limits, since its own lateness leads the other party to believe that time is not of the essence. See, e.g., Collis Co., 50 LA (BNA) 1157 (Doyle, 1968).
In summary, I conclude that the Union is entitled to a determination on the merits of the initial grievance. The hearing on the merits is scheduled for June 30, 2004, at 10:00 a.m.
The November 27, 2002 grievance shall proceed to a determination on the merits.
* Selected by parties through procedures of the Federal Mediation and Conciliation Service.