By Jim Cline and Troy Thornton
Arbitrator Patrick Halter found that a union representing federal corrections officers in Seagoville, Texas, failed to file a timely grievance on an alleged arbitrator transfer when it believed four of its members had been transferred arbitrarily. Halter ruled in Federal Bureau of Prisons, 2020 BNA 1413 that even though the employer failed to respond to the grievance in a timely manner, a greater error was made by the Union in failing to file a grievance within the 40 days allowed in the CBA.
The Union had alleged that the Employer violated the CBA by transferring Officers Boykin, Horace, Smith, and Lapore away from their bid-for posts within the corrections facility. On November 21, 2019, Boykin and Horace were moved away from their post in the Segregated Housing Unit into the Phone Monitoring Room. On February 25, 2020, Smith and Lapore were also moved from the Segregated Housing Unit into the Phone Monitoring Room. The Union believed that these transfers were unnecessary, and the common link between the four individuals is that they were all under investigation for other disciplinary matters.
The parties met informally, as is suggested in the CBA, on March 5, 2020. After failing to reach a settlement through informal discussions, the Union formally grieved the issue on April 15, 2020.
The Union argued that it should be entitled to a judgment in its favor without a hearing because the Employer failed to respond to its April 15, 2020 grievance. Under the language of the CBA, the Employer is allowed 30 days to respond to a grievance. Based on the April 15 filing date, the Employer’s response should have been received by May 15, 2020. Instead, the Employer failed to respond at all.
The Employer, on the other hand, argued that the grievance should be dismissed on the basis that the Union did not file its grievance in a timely manner. Despite language in the CBA suggesting that the sides attempt to meet and resolve issues informally, the Union had 40 days to file a grievance, and failed to do so. For the transfer involving Boykin and Horace, 40 days from the date of the transfer would have meant December 31st, 2019. For the one involving Smith and Lapore, 40 days would have meant April 5, 2020.
Arbitrator Halter felt that the timeliness issue should be resolved before anything else and examined the grievance timing language. Because the language of the CBA required a grievance to be filed within 40 days from the event, or within 40 days of when the individuals involved should have been aware of the grievance, an issue existed as to whether the employees should have been aware of the issue on November 21st and February 25th. Ultimately, Halter determined that the actions involved were straightforward enough that the officers should have been aware that the actions might be grievable, which resulted in his ultimate determination that the grievance was not filed in a timely manner. As a result, the grievance was denied.
A reassignment is not an esoteric act unannounced to affected officers. In this situation officers were removed from their bid posts or assignments – their preferred posts – and placed in PMU pending investigations referenced by FCI under Article 30 – Disciplinary and Adverse Actions. The officers were reasonably aware when this grievable event occurred – November 21, 2019 (Officers Horace and Boykin) and February 25, 2020 (Officers Lapore and Smith) – as they were the recipients of it. The 40-day contract window to file a grievance was not extended by having the Union file a grievance April 15, 2020, identifying the Local as the grievants.
Most arbitrators are reluctant to find the grievance is resolved on a “forfeiture” based on lapsed timeliness. But it does occur when grievances are filed well beyond agreed upon timelines. Always be mindful of when events occurred and what the Grievance Procedure timelines. They are mandatory, not optional.
One key takeaway from this decision is that language encouraging the informal settling of grievances may come back to punish well-intending executive boards. Because the lapsed grievance situation arises so often under contracts that use an informal or verbal first step, Cline and Associates recommends against including such steps in the contact. Step 1 should be in writing with a required written and timely response by the employer. If you do have to deal with an informal grievance step, we recommend that you document the verbal communications over the status of the grievance in writing. A recurring issue we have seen is that management claims that it has fully responded to the informal grievance, while the grievant or union believes it is still awaiting an answer.
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