By Jordan L. Jones
In City of Marion, the arbitrator denied the police dispatcher’s grievance for in-service incentive training pay finding that the grievance was not filed timely under the CBA.
The dispatcher received a paycheck on February 28, 2013, and noticed that there was not a wage increase that should have been included for in-service incentive training under the CBA. The dispatcher subsequently filed a grievance with the city on March 22, 2013.
The city argued that the dispatcher’s grievance was time barred under the CBA, because it was not filed within 10 days of when the paycheck was received.
The union contended that the grievance was in fact timely; “that the employee had relied upon an “assurance that he had ‘maxed out’ on training credit . . . [and he] did not become aware [that the Chief had made the decision to not give the dispatcher the wage increase at the time he received his paycheck on February 28, 2013]. The union also argued that ”the theory of ‘continuing violation’ . . . should apply.” Under the “continuing violating” theory, the harm to the dispatcher would be on-going and therefore when the grievance was filed it would not be time barred.
The arbitrator noted the “continuing violation” theory did not apply because:
Art. 9 of the instant collective agreement differs from these: it sets out the time limit from the point at which the ‘occurrence of the event first giving rise to the grievance’ occurs or is known. It needs no authority to make the point that the words in the collective agreement are put there for a purpose and that the arbitral function is to apply the terms according to what they mean, in the larger context of the agreement as a whole.
Therefore, the arbitrator held that the grievance should have been filed within 10 business days after February 28, 2013 (i.e., the “first event giving rise to the grievance”).
By the contract’s clear and unmistakable text the Grievant was bound to grieve it within the contractual time period . . . . Consequently, as the Grievance was untimely, the Arbitrator lacks contractual authority over the merits of the claim.
Editor’s Note (Jim Cline): This decision is puzzling to say the least. The arbitrator cited in his decision several arbitration decisions that have found that each paycheck a separate event, triggering the start of a new time period. But for reasons that were not especially clear, he found that doctrine didn’t apply. He found, apparently, that the grievance language regarding filing a grievance from the time “first giving rise” to the grievance meant, that the grievance had to be filed, and could only be filed, on the first time the violation occurred.
This language underscores the importance of reviewing your CBA quickly when issues arise and always being mindful of time limits. It seems that 4 out of 5 arbitrators would have found this grievance not to be time barred, but you don’t want to have to argue timeliness when the argument can be avoided.
