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Untimely grievances not arbitrable
September 04, 2005 by Ross Runkel at LawMemo

The facts: The collective bargaining agreement expired in December 1999, the union discovered the facts giving rise to the grievances in February 2000, and the union waited until September 2001 to file the grievances.

Black letter law:

• If a company claims a union's grievance is filed too late, the court's job is to send the case to the arbitrator, and it's for the arbitrator to decide the question of untimeliness. Howsam v. Dean Witter Reynolds, 537 US 79 (2002).
• After a collective agreement expires, grievances that arose during the term of the agreement are still arbitrable. Nolde Bros v. Local No. 358, 430 US 243 (1977).

How about a giant exception? Read R.J. Corman Derailment Svcs v. Operating Engineers (7th Cir 09/02/2005).

The 7th Circuit's reasoning:

• Nolde is based on a presumption of arbitrability.
• The presumption of arbitrability does not last forever.
• The presumption lasts "a reasonable time," and 18 months is way too long.
• This is not contrary to Howsam, where the issue was untimeliness, because here the issue was "how long the expired agreement to arbitrate survived."

My view: Wrong. This is a classic situation in which it is the collective bargaining agreement that should provide the answer, and it is for an arbitrator to say what the agreement means. I assume an arbitrator would rule that an 18-month delay is too long, but that is a decision for an arbitrator rather than a court.

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