3 YEARS, 5 MONTHS & 19 DAYS IS NOT PROMPT
Because the collective bargaining agreement characterized the grievance process as designed to provide for the “prompt” settlement of grievances, an arbitrator decided to void the union’s grievance on behalf of a removed employee as not promptly processed. The reference to “prompt” efforts appears in dozens of agreements, and this case signals that more unions are going to lose the grievance entirely when they invoke arbitration, but then take months and years to request an arbitration panel, schedule a hearing date, file post-hearing briefs. Moreover, a Court of Appeals case gives agencies even more reason to punish foot-dragging unions.
In this 2019 arbitration case, which we are only going to identify by naming the arbitrator who decided it, i.e., E.R. Scales, the union allowed 3 years, 5 months, and 19 days to pass from the date of the grievance to the date the arbitration hearing was held. More importantly, it allowed 1 year, 6 months and 9 days to pass between the date it invoked and the day it requested an FMCS panel of arbitrators. The union then took another 1 year, five months and one day to select the arbitrator. The arbitrator considered the union’s behavior lackadaisical—and we can’t blame him given that the Federal Circuit Court of Appeals said the same thing under very similar circumstances. (See Gonce v. VA, 872 F.2d 995 (Fed. Cir. 1989)) Surprisingly, there is nothing in the decision highlighting the potential damage the delay does the agency in a removal or any back pay case. Had the arbitrator reinstated the employee the agency would have been on the hook for about four years of back pay and interest rather than about a year’s worth as is more typical.
Unions would be wise to go through their inventory of invoked arbitration cases and either move them through the process of arbitrator selection and hearing scheduling in a matter of weeks or be ready to defend against similar agency arguments. If there have been large delays in the process to date, the unions should work real hard to settle the case if there is even a tiny hint the agency will make argument about prompt processing