Manchester T & E is a company which produces propane cylinders. The International Workers represents the bargaining unit employees at the Blue Ridge, Georgia plant.
The Grievances No. 26-97 and 27-97 which are subject of this arbitration were filed on December 18, 2007. Mr. Ralph Goode, Chief Steward, filed Grievance No. 26-97 on behalf of Keith Poor. Mr. Goode wrote:
Nature of Complaint:
The Union contends that on 12/16/07 the Company violated Article VII not to exclude any other Articles or Sections pertaining to the contract.
To satisfy this grievance the Union will accept that Keith Poor be placed back to work with all pay that he has lost which would be all straight pay and overtime pay.
On December 22, 2007, Mr. Sam Smallwood, personnel manager, denied the grievance.
Grievance No. 26-97 was appealed to the third step, and Mr. Smallwood denied the grievance on January 13, 2008.
Mr. Goode also filed Grievance No. 27-97 on behalf of Mr. Bob Boyce. He wrote:
Nature of Complaint:
The Union contends that on 12/16/07 the Company violated Article VII not to exclude any other Articles or Sections pertaining to the contract.
To satisfy this grievance the Union will accept that the Company place Bob Boyce back to work with all back pay that he has lost and that he be made whole.
On December 22, 2007, Mr. Smallwood denied the grievance.
The union appealed Grievance No. 27-97 to the third step, and Mr. Smallwood denied the grievance on January 13, 2008.
On January 21, 2008, Mr. Goode wrote the following note:
The Union wishes that Grievance numbers 22-97, 23- 97, 24-97, 25-97 be put on hold until next 3rd Step meeting, and that Grievance numbers 26-97 and 27- 97 be brought up for Arbitration.
On March 25, 2008, Mr. George H. Mason, business representative, wrote the following letter to Mr. Smallwood.
The Company’s answer to the above mentioned grievance(s) has been deemed unsatisfactory to the Union. Pursuant to Article V, Section 5, of the current Collective Agreement, the Union will proceed to arbitration.
Issue
Are Grievance No. 26-97 and Grievance No. 27-97 arbitrable?
Relevant Provisions of the Collective Bargaining Agreement
Article V: Grievance Procedure and Arbitration
Section 2. Time Limits.
If an appeal is not made in the prescribed time limit following the company’s answer at any step of the foregoing procedure, the grievance shall be considered settled on the basis of the company’s answer, and not subject to further action of any kind. If the company does not answer the grievance in accordance with the foregoing procedure, the grievance shall be settled on the basis of the union’s request in said grievance.
The time limits for presentation, answer, and appeal on a grievance at any step are absolute and binding upon both parties, unless such time limits are extended by mutual agreement.
Section 5. Arbitration.
If the director of human resources’ written answer in step 3 is deemed unsatisfactory, the union may elect to submit the grievance to arbitration. A grievance not settled in Step 3 must be appealed to arbitration by written notice to the director of human resources, or his representative. Such notice shall be mailed by certified mail, return receipt requested, and must be postmarked no later than ten (10) normal working days after the date of these 3 answer.
Both parties shall have the opportunity to present evidence and to argue that grievance orally and/or in writing. The arbitrator shall make a written decision and award, in accordance with the evidence, which shall not alter, add to, or subtract from the terms of this agreement. The arbitrator shall have no power to substitute his discretion for that of the company in any matter where the company has not expressly contracted away its right allowing an arbitrator to exercise such discretion. Such written decision shall be binding upon the company, the union, and the aggrieved employee.
Positions of the Parties
The Company
The company argued that, under the terms of this agreement, the union may proceed to arbitration when it is dissatisfied with the company’s resolution of a grievance in its step 3 answer. As a prerequisite, the union must provide the company with timely and proper notice of its intent to proceed to arbitration. To be considered timely and proper, the notice must comply with the simple and straightforward provisions set forth in Article V, Section 5, of the agreement. Article V, Section 5, provides: “A grievance not settled in Step 3 must be appealed to arbitration by written notice to the Director of Human Resources, or his representative. Such notice shall be mailed by Certified Mail, Return Receipt Requested, and must be postmarked no later than ten (10) normal working days after the date of the Step 3 Answer.” The straightforward language clearly and unambiguously states that a notice of intent to arbitrate must meet three requirements. First, the notice must be in writing. Second, it must be delivered to the company via certified mail. Third, it must be postmarked within ten days of the step 3 answer, which is always dated. In addition, Article V, Section 5, states that time limits are absolute and binding upon both parties unless extended by mutual agreement.
The company claimed that the union is seeking to persuade the arbitrator that the company should be forced to arbitrate Grievance No. 26-97 and No. 27-97 despite the union’s failure to provide the company with timely and proper notice of its intent to arbitrate either of these two grievances. Mr. George Mason provided the company with written notice, via certified mail, return receipt requested; however, this notice was clearly untimely, because it was postmarked well beyond ten working days after the company’s step 3 denial.
Since the union failed to provide timely notice of its intent to arbitrate the grievances at issue, the union has attempted to characterize a handwritten note from its chief steward Goode to the company’s representative, Sam Smallwood, as a request for an extension of the time limits. The union’s attempt to characterize a handwritten note as a request for an extension of time for Grievance No. 26-97 and No. 27-97 is wholly without merit.
The union has failed to either request arbitration in accordance with the mutually agreed upon terms of the agreement or to obtain a mutually agreed upon extension of the time. Therefore, the two grievances at issue are not procedurally arbitrable. The express terms of Article 5, Section 2, state that, as a result of the union’s failure to appeal the company’s step 3 answers to arbitration within the prescribed time limit, “the grievance[s] shall be considered settled on the basis of the company’s answer[s], and not subject to further action of any kind.” According to this straightforward contractual language, the two grievances at issue were rendered settled on the basis of the company’s answers.
The company never explicitly or implicitly agreed to extend the time limits on the two grievances at issue. In response to the union’s untimely request, the company immediately raised the timeliness issue and denied arbitration. The company has insisted on strict compliance with procedural requirements throughout its bargaining relationship with the union and has never waived compliance with the procedural provisions of the grievance and arbitration process, even when the result was detrimental to the company. It is clear that the company has not forfeited its right to insist on strict compliance with the procedural requirements of the agreement. The company was entitled to preserve the integrity of its contract by denying the union’s untimely request for arbitration and by treating the grievances as settled on the basis of the company’s step 3 answers. The company reviewed its version of the facts. On December 16, 2007, the company discharged two employees, Bob Boyce and Keith Poor, for fighting in the plant. On December 18, 2007, timely grievances were filed on behalf of each employee. These grievances were numbered 26-97 and 27-97. On December 22, 2007, Mr. Smallwood issued step 2 denials on both grievances. Both cases proceeded to the step 3 of the grievance procedure on January 13, 2008, and the company denied both grievances on this same date.
On January 21, 2008, Mr. Goode, submitted a handwritten note to Mr. Smallwood, which stated: “The Union wishes that Grievance numbers 22-97, 23- 97, 24-97, 25-97 be put on hold until the next 3rd Step meeting, and that Grievance numbers 26-97 and 27-97 be brought up for arbitration.” According to the plain language of this note, the union was requesting the company to put Grievance Nos. 22-97, 23-97, 24-97 and 25-97 on hold, but to proceed to arbitration on Grievance Nos. 26-97 and 27-97. Mr. Smallwood testified that he interpreted the note exactly in this manner. As a result, Grievance Nos. 22-97, 23-97, 24-97, and 25-97 were put on hold. Mr. Goode’s note, however, was not treated by the company as a formal demand for the arbitration of Grievance Nos. 26-97 and 27-97 because it was clearly not provided in accordance with the agreement. Mr. Smallwood testified that he expected the union to follow up with a formal request. Mr. George Mason, the union’s business representative, did eventually provide the company with a formal written request, delivered via certified mail, return receipt requested, as required by the agreement. However, this request was postmarked March 25, 2008, many weeks beyond the time requirements set out in Article V, Section 5, which expressly requires the union to make a formal demand for arbitration within ten working days after the company’s step 3 denial. The company’s step 3 denials were issued on January 13, 2008, and the union’s formal request for arbitration was received on March 26, 2008, well over two months later. Upon receipt of the union’s untimely request, the company immediately responded by letter to Mr. Mason and denied the union’s request for the arbitration of Grievance No. 26-97 and No. 27-97 as untimely and not in compliance with the agreement.
The company stated that it has maintained a long- standing policy of requiring strict compliance with time limitations of the grievance procedure throughout the bargaining relationship with the union. The evidence established this practice and illustrated that the company has uniformly denied untimely requests for arbitration and has enforced contractual time limits even when detrimental to its own position.
The company claimed that it uniformly honors timely requests for arbitration. The evidence established that, with the exception of the two incidents dis- cussed above, the union has consistently provided its requests for arbitration in a timely manner. In response to the union’s timely requests, the company has com- plied in good faith with the agreement and proceeded to arbitration. The company argued that the union understands and routinely complies with the plain language of the contract on time limitations. When the union does comply with the time limitations set forth in the contract, the company upholds its part of the bargain and proceeds to arbitration.
The company argued that the agreement does not permit the arbitrator to modify the contract. Therefore, the arbitrator should enforce the contract in accordance with its plain and unambiguous language. Article V, Section 5, specifically states that the arbitrator “shall not alter, add to, or subtract from the terms of this agreement.” This is the intent of the parties as expressed by clear contractual language, which governs resolution of contract disputes rather than the preference of the arbitrator.
In this case, the contract clearly sets forth the procedural requirements for requesting arbitration. The evidence firmly established that the union failed to request arbitration of Grievance No. 26-97 and No. 27-97 in accordance with these clear and unambiguous requirements. The contract provides in very straightforward language that the union’s failure to comply shall result in the settlement of the grievances based on the company’s answers. Despite these facts, the union has asked the arbitrator to allow the union to proceed to arbitration on these two grievances, when to do so would violate the contract’s explicit directive that the arbitrator not alter, add to, or subtract from the terms of the agreement.
The company concluded:
Based on the reasons set forth above, these two grievances are not procedurally arbitrable and should be denied.
The Union:
The union stated that on or about December 11, 2007, the company terminated the employment of two bargaining unit employees, and the union filed grievances on behalf of the employees. These grievances were appealed through the grievance procedure, and the company’s final answer, dated January 13, 2008, was “no violation, grievance denied.” Subsequent to the company’s final grievance answer, the company took the position that the grievances had become untimely and therefore not arbitrable. The union presented testimony and documentation by the local lodge chief Steward, Mr. Ralph Goode. Mr. Goode has worked for the company for 17 years and has been chief steward of the local union for six of those years. Mr. Sam Smallwood, personnel manager, is Mr. Goode’s counterpart in management. Mr. Goode pointed out that both the union and the company from time to time have reasons for deferring grievance time limits, and Mr. Goode presented to Mr. Smallwood a document deferring the time limits on Grievance Nos. 26-97 and 27-97.
The union claimed that the company did not object to the above mentioned document’s request. Mr. Goode recalled that neither party has ever rejected the other’s request for time deferrals. At the time of this arbitration, there were seven grievances with time deferrals and the oldest was 11 months. The union deferred the time limits of Grievances No. 26-97 and No. 27-97 because the parties were in con- tract negotiations. On some occasions, issues could be resolved around those meetings without formal proposals being made. However, the union and company could not resolve Grievances No. 26-97 and No. 27-97, and the union sent a letter to the company appealing the grievances to arbitration.
The union argued that Article V, Section (2), Grievance Procedure and Arbitration, provides that the parties through mutual agreement may extend the time limits of grievances in process. For the past six years the parties have honored each other’s request to defer time limits. Mr. Goode testified that he requested time limit deferrals on all grievances mentioned in his correspondence of January 21, 2008, and that the company did not object to his request. At the time sur- rounding contract negotiations, the company and the union attempted to resolve Grievance No. 26-97 and No. 27-97. The union argued: “It flies in the face of reason that the company would discuss grievances that in their opinion were untimely.” When the company and the union exhausted their attempts to resolve Grievance No. 26-97 and No. 27-97, the union properly referred the matters to arbitration.
The union concluded:
For all the foregoing reasons, the union requests that Grievances Nos. 26-97 and 27-97 be ruled arbitrable and the proper remedy be ordered.
Questions
1. Assess the union’s argument that the parties in the past have agreed to extend time limits.
2. Should the arbitrator be influenced by any evidence over the reasons for the termination of those two employees?
3. What are the company’s best evidence and arguments?
4. What are the union’s best evidence and arguments?
5. You be the arbitrator. How will you rule? Are these grievances arbitrable?