KM&M Arbitration Victory Confirms that Grievant's Time to File Begins to Run When She First Learns of the Challenged Employment Decision
In July 2002, an arbitrator in New York City denied and dismissed as untimely a grievance filed against our client (a university). The arbitrator's decision in this case was especially noteworthy insofar as it confirmed the principle that any applicable time limitation for filing a grievance begins to run when the aggrieved party first learns of the employment decision which is the subject of the grievance.
Here, the grievant, a University professor, had requested a salary review pursuant to the applicable collective bargaining agreement. Following the salary review, she was advised that her salary would not be increased. For months thereafter, she agitated for more money, but she waited more than a year to file the grievance the union ultimately submitted for arbitration. The governing collective bargaining agreement provided that grievances were to be filed "not later than 10 school days following the faculty member's knowledge of the act, event, or the commencement of the condition which is the basis of the grievance."
At our request, the arbitration was bifurcated, with the initial hearing devoted to issues of procedural and substantive arbitrability. We argued at the hearing and in post-hearing briefing, among other things, that the grievance was not arbitrable because it had not been timely filed.
The arbitrator agreed, finding that the time limitation in the contract was "clear and unambiguous." The arbitrator went on to reject each of the union's alternative arguments, including its argument that the University had not insisted on strict adherence to deadlines as a matter of past practice. Based on the testimony we elicited from the University's former General Counsel, the arbitrator found that the deadline had been extended in the past on a "case-by-case basis," and only when an extension was requested before the deadline for filing elapsed.