Arbitration Deadline in Federal Sector Grievance Is Nonbinding Housekeeping Rule: Federal Circuit | Practical Law

Arbitration Deadline in Federal Sector Grievance Is Nonbinding Housekeeping Rule: Federal Circuit | Practical Law

In Muller v. Government Printing Office, the US Court of Appeals for the Federal Circuit held that a four-month arbitration deadline in a federal sector grievance was a non-binding housekeeping rule and reversed the arbitrator's decision that the matter was not arbitrable.

Arbitration Deadline in Federal Sector Grievance Is Nonbinding Housekeeping Rule: Federal Circuit

by Practical Law Labor & Employment
Published on 26 Jan 2016 • USA (National/Federal)
In Muller v. Government Printing Office, the US Court of Appeals for the Federal Circuit held that a four-month arbitration deadline in a federal sector grievance was a non-binding housekeeping rule and reversed the arbitrator's decision that the matter was not arbitrable.
On January 15, 2016, in Muller v. Government Printing Office, the US Court of Appeals for the Federal Circuit reversed an arbitrator's conclusion that the failure to meet a four-month arbitration deadline in a federal sector grievance made the matter not arbitrable. The Federal Circuit found the deadline to be a non-binding housekeeping rule to encourage parties to proceed through the arbitration process in a timely fashion. The contractual provision contained no requirement to dismiss a grievance when the deadline was missed. ( (Fed. Cir. Jan. 15, 2016).)

Background

Raymond Muller was an employee of the US Government Printing Office (GPO) and a member of the Teamsters union. GPO and the Joint Council of Unions (which included the Teamsters union) had a collective bargaining agreement that contained a grievance procedure for GPO employees to challenge adverse employment actions in lieu of appealing to the Merit Systems Protection Board (MSPB). Section 10 (d)(4) of the agreement stated that "[t]he arbitration hearing will take place within 4 months after filing of the notice of decision to proceed to arbitration, unless the parties mutually agree to an extension of the time limit."
When Muller was demoted with a pay reduction, he challenged the demotion through the grievance procedure. On February 19, 2014, the union timely invoked arbitration. The selected arbitrator received the matter three weeks prior to the four-month deadline and suggested potential arbitration dates that were several weeks beyond the deadline. On June 19, 2014, the four-month deadline date, the GPO asked that the arbitration be closed due to the failure to meet the deadline.
The arbitrator:
  • Terminated Muller's grievance for the failure to comply with the four-month deadline.
  • Concluded that the union was primarily responsible for the delay.
Muller petitioned for review of the arbitrator's decision, arguing that the decision to dismiss the grievance was:
  • Arbitrary and capricious.
  • An abuse of discretion.
  • Not supported by substantial evidence.

Outcome

The Federal Circuit reversed the arbitrator's dismissal of the grievance and remanded the matter so the grievance could be addressed on its merits.
The Federal Circuit noted that:
  • Under the Civil Service Reform Act of 1978 (CSRA), federal employees seeking to challenge disciplinary actions can:
    • appeal their claims to the MSPB; or
    • bring their claims to arbitration under the negotiated grievance procedure of a collective bargaining agreement (CBA).
    (5 U.S.C. § 7121(e)(1).)
  • Failure by employees or their unions to promptly invoke arbitration results in the forfeit of their claim (5 U.S.C. § 7121(e)(1)).
  • The CSRA provides no statutory timing requirement for the period after the arbitration has been invoked. Once it is invoked, grievance arbitration proceeds under the rules and timeframe set by the governing CBA.
  • It has upheld arbitrators' dismissals of employee grievances for failures to comply with internal deadlines, but in those cases, the deadlines were specifically directed to the union (Gonce v. Veterans Admin., 872 F.2d 995, 998 (Fed.Cir. 1989); Herrera v. Department of Homeland Security, 498 F. App'x 35, 38 (Fed.Cir. 2012)).
The Federal Circuit found that:
  • Non-compliance with the master agreement's four-month deadline to complete arbitration does not require the arbitration's dismissal, because:
    • section 10(d)(4) of the agreement is directed to both parties and the arbitrator, not specifically to the union alone;
    • the master agreement has another clause that is specifically directed to the union; section 10(d)(1) directs the union alone to invoke arbitration within 30 days of the grievance committee decision;
    • the union alone has the power to comply with the 30-day deadline to invoke arbitration;
    • alternatively, the union does not have the power to ensure compliance with the four-month deadline, since the other party, the arbitrator, and even the government can cause delays in the arbitration process;
    • section 10(d)(4) does not specify that dismissal (or any other specific consequence) was a proper sanction for failure to comply with the four-month deadline (see Stevens v. Department of the Air Force, 395 F. App'x 679 (Fed.Cir. 2010); and
    • the government conceded at oral argument that the 30-day deadline was merely a goal with no necessary noncompliance consequences; no explanation was provided as to why the four-month deadline would be treated differently than the 30-day deadline).
  • There was no basis in the master agreement text to support the claim that non-compliance with the four-month deadline automatically invalidated Muller's claim.
  • No past practice existed between the parties to suggest that the agreement should be interpreted to require dismissal of a timely-invoked grievance for failure to meet the four-month deadline.
  • In a prior case, past practice created a binding deadline despite an absence of express CBA language, but only because the union failed to request an arbitrator for more than a year, after previously complying for sixteen years (Cruz–Martinez v. Dep't of Homeland Sec., 410 F.3d 1366, 1370 (Fed.Cir. 2005)).
  • Past practice evidence in the current record consisted of several GPO letters dismissing union grievances for failure to conduct hearings within the four-month timeframe, but in each of those letters the union had failed to select an arbitrator within four months. In Muller, the union submitted Muller's grievance to an agreed-upon arbitrator in a timely fashion.

Practical Implications

In Muller, the Federal Circuit reversed an arbitrator's decision to dismiss an employee's grievance for failure to comply with a four-month arbitration deadline. If an agreement includes clauses directed specifically to a union, other clauses directed to both parties (and the arbitrator) should not specifically bind and sanction the union alone. If a union does not have sole power to ensure compliance with a deadline, it cannot be solely responsible for an overall failure to comply with the deadline. There is a difference between a union's failure to invoke arbitration in a timely fashion and the failure of the arbitration process to reach completion in a timely fashion once all parties are involved. To enforce a sanction for failure to comply with a CBA clause, an agency employer should be sure to negotiate the inclusion of specific terms concerning the potential sanction.