MEASURING THE QUALITY OF A UNION
We have always thought that you can measure the quality of a union by how quickly it moves a member’s grievance to and through arbitration for a final decision. After all, for every member left to deal with the uncertainty, anxiety, and/or stress of waiting for a final decision, there is a local union leader who probably assured the grieving member that his/her union would do everything it could to help. That union leader looks foolish as weeks and then months turn into more than a year awaiting a final decision. That is why we we’re a little sorry to see the Federal Circuit Court’s new decision letting a union off the hook for delaying a case. Here are the facts.The parties signed a term agreement with this clause, “[t]he arbitration hearing will take place within 4 months after filing of the notice of decision to proceed to arbitration, unless the parties mutually agree to an extension of the time limit.” The union timely invoked arbitration on February 19, 2014, and requested and received a list of arbitrators from the FMCS on April 2, 2014. The union and the agency jointly selected Marvin Feldman as arbitrator, who was notified of his selection on May 29, 2014. The arbitrator thus received the case approximately three weeks prior to June 19, 2014, the date on which the four-month deadline expired. The arbitrator wrote the union and the agency on June 9, 2014, to suggest the hearing be held July 23 or August 6, 2014.
On June 19, 2014, four months to the day from the date that arbitration had been invoked, the agency wrote to the union and the arbitrator to ask that the arbitration be closed for failure to comply with the four-month deadline.
Shortly thereafter, the arbitrator concluded that noncompliance with the four-month hearing deadline automatically terminated the grievance and that the union was primarily responsible for the delay. “[T]here is ample evidence in the record, although none is required contractually, that the union, not FMCS, was the direct and primary cause for the failure….”
Because the grievance involved a disciplinary adverse action, the union appealed to Federal Circuit Court of Appeals. The Court concluded that noncompliance with the four-month deadline in the master agreement does not require dismissal of the arbitration. It is not directed specifically to the union; it is not within the union’s power to ensure compliance with the four-month deadline; and the provision does not specify dismissal as a sanction for failure to comply with the deadline. In fact, the court ruled that, “the four-month deadline, which immediately follows the provisions of the master agreement concerning selection of the arbitrator, is clearly addressed to all three actors, not to the union alone.”
It was heavily influenced by the fact that, “Unlike the 30-day deadline for invoking arbitration, compliance with which is entirely within the union’s control, the union cannot unilaterally ensure that a hearing is held within four months. Indeed, under the arbitrator’s approach, even delay occasioned entirely by the government would result in dismissal of an employee’s grievance.
If there is any good news in this decision for those of us who wasn’t to see members and their local union reps get priority from those who control the pathway to arbitration, it is that the Court pointed us to some of its previous decisions in which it has dismissed the cases of two federal employees’ because the union failed to comply with a requirement in the collective bargaining agreement that “the moving party . . . request the Federal Mediation and Conciliation Service to provide a list of seven (7) impartial persons to act as an arbitrator.” The Court noted that “it was the union’s responsibility to request the panel of arbitrators ‘on or after the date of the notice of arbitration’ so as to secure ‘prompt and equitable resolution of grievances,’ but it waited seventeen months before it did.”
The take-away from this case, titled Mueller v. GPO, No. 2015-3032, (Fed. Cir. January 15, 2016) is that when an agency is trying to stop unions from letting cases linger until they find that they have run out of reasons not to do the cased, they need to write a clause that not only spells out the union’s responsibilities, but also the penalty. On the flip side of that coin, unions that want agency reps to move quickly also need to impose penalties on them when they do not move quickly to schedule and complete a hearing. For example, they could propose that if management is not willing to schedule a case within 90 days of when the arbitrator is picked that it must pay the full cost of the arbitration. Or if it misses that deadline, any official time the union has charged that month will not be subtracted from any annual cap on time until the hearing is within 90 days.
We realize that more than a few union leaders controlling the speed with which cases are arbitrators who probably think we are naïve because we do not realize how many things they have to do besides move cases. Well, if they thinking that way then they should admit to members that the needs of aggrieved members are not among the top priorities. If you want to find out, ask the leader controlling the arbitrations if s/he keeps on his/her desk a list of the pending cases starting with the oldest among them and the name of the staffer assigned to the case. If not, your union likely has a problem.