BEWARE THIS CONTRACT DEADLINE CLAUSE

Here is one we have not seen before.  An arbitrator sustained a grievance and subsequently awarded the union attorney fees.  However, he did so after four days after the negotiated deadline provision in the parties’ agreement that stated, “[t]he Arbitrator shall render a decision on the Union’s petition for attorney fees within thirty (30) days of receipt of the Agency’s objections . . . .” When the agency filed exceptions to the fee award on the grounds that the arbitrator no longer had jurisdiction after missing the negotiated deadline, FLRA remanded the case to the arbitrator to explain why he thought he still had jurisdiction. From where we are sitting, …

there is a very good chance that the arbitrator waited too long and the fee the union earned will be voided.

We have seen contract clauses like this in several agreements.  They are usually put there to motivate the arbitrator to issue the decision quickly, without any thought being given to whether the words effectively terminate an arbitrator’s jurisdiction if s/he misses the deadline. This FLRA decision is likely to trigger a rash of agency appeals against any arbitrator award which is issued after the contract deadline.  Sadly, arbitrators almost universally take more than 30 days to issue a decision.

What can a union do about this until the contract reopens for renegotiations? First, see if the agency will agree that any clause like the one above does not terminate the arbitrator’s jurisdiction.  If it will, get it in writing or at least in an e-mail. If the agency resists, inform it that going forward the union will insist that the related provisions which require the agency to issue a response to a grievance within X days will be interpreted to mean that if the agency fails to issue a response timely it loses the right to raise any or any more arguments when defending the case at arbitration.

Another solution is to impress on the arbitrator the need to meet the deadline or at least to get agency approval for any extension s/he needs.  We suppose that it would be acceptable under a clause like the one above for the arbitrator to issue a very short decision within the deadline and follow that with a longer rationale for the decision after the deadline, but that just speculation on our part.

Of course, a union can always try to sue or otherwise pursue an arbitrator who misses a deadline for any damages, but that sounds like a lot of work given the steep odds against winning.

You can find this decision at DHS and AFGE, Council 119, 73 FLRA 354 (2022).