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Late filing divested arbitrator of jurisdiction
August 12, 2008 by Ross Runkel at LawMemo

It has long been an axiom of arbitration law that it is for the arbitrator - not the court - to decide whether a union's grievance was filed on time.

However, the arbitrator's decision on that question is still subject to some limited judicial review to decide whether the arbitrator's decision "draws its essence" from the collective bargaining agreement.

In City of Fairfield v. AFSCME (Ohio Ct Appeals 08/04/2008) the Union filed a grievance claiming that the City had assigned the duties of two bargaining unit positions to non-bargaining unit employees.

The collective bargaining agreement had a three-day limit for filing grievances, and the grievance was filed more than three days after the City's decision was made and came to the Union's attention.

However, the arbitrator granted the grievance. The arbitrator held that this was a "continuing violation" and that each day the City allowed the duties to be performed by non-bargaining unit employees was a new violation. Therefore, the arbitrator decided that the grievance was timely filed.

The Ohio Court of Appeals held that the arbitrator's award departed from the essence of the collective bargaining agreement. The court said the contract was plain and unambiguous, and that the arbitrator did not have "jurisdiction" to decide the case because the grievance was untimely.

My view: Plainly wrong.

Of course, it is easy to say that the arbitrator was "wrong" or misinterpreted the collective bargaining agreement. Let's just assume that is true.

However, the court simply substituted its own interpretation of the contract. To the court, the arbitrator's continuing violation theory "did not comport with" the plain and unambiguous three-day limit. But that is not a proper judicial role. The "essence" test, applied correctly, is that the court must not re-decide the merits of the case provided that the arbitrator was even arguably interpreting the contract.

Here's what the US Supreme Court said in Paperworkers v. Misco, 484 US 29 (1987):

As the Court has said, the arbitrator's award settling a dispute with respect to the interpretation or application of a labor agreement must draw its essence from the contract and cannot simply reflect the arbitrator's own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.