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When is a Dispute a Grievance?
Mar 11, 2019


By: Max Rieker, Esq.

As students, we all learned about the rights guaranteed by the First Amendment of the United States Constitution.  Everyone remembers the subject matter of the first four rights:  religion, speech, press, and assembly.  The fifth right guaranteed by the Constitution is the oft times forgotten one, to “petition the Government for a redress of grievances.”[1]

As a public sector employee covered by a collective bargaining agreement, your ability to seek “redress of grievances” does not flow from the Federal Constitution, rather it is an animal of contract law which is governed by the laws of the State of Ohio.  However, the concept is the same.  The Founding Fathers implemented the notion of citizens being able to legally check the actions of the Government when it oversteps its prescribed bounds.  Likewise, your collective bargaining agreement grants the ability to check the actions (or inactions) of your employer when it runs afoul of the agreed-upon labor contract.

Assessing “Grievability”

An OPBA member has a dispute with his or her employer.  That member wants to grieve the issue.  That member wants to arbitrate the issue and generally be made whole.

This is an understandable and frequent reaction to the day-to-day employment disputes that affect the OPBA membership.  Often, the member has a legitimate argument for why he or she should be entitled to some sort of remedy.  At the very least he wants to have the ability to “petition” for the redress of the alleged grievance.  Sometime, that argument and ability is not so clear cut.

Experienced OPBA Directors and representatives know that the first level of inquiry in any dispute with the employer is to determine whether something is actually a grievance.  A grievance is typically defined by the collective bargaining agreement under which the parties operate.  A grievance is essentially a breach of that labor contract.

There is a saying that every act of unfairness in the workplace is not necessarily an unfair labor practice; at least not an unfair labor practice charge that the State Employment Relations Board would be willing to take action upon.  Likewise, every dispute is not necessarily a grievance.  Quite often, a member will go to his OPBA representative alleging that a supervisor has treated him unfairly, or that a supervisor makes snide remarks, or that a supervisor is otherwise offensive.  The problem with many of these types of disputes is that collective bargaining agreements rarely contain any language which would be actionable to address such negative treatment.  Quite simply, it is difficult, if not impossible to succeed in obtaining contract language which would address the personality defects and egotistical tendencies of these supervisors at issue.

Substantive Challenge to Arbitrability

While we sometimes see grievances alleging violations of the Family and Medical Leave Act or violations of the Fair Labor Standards Act, those allegations may not be grievable because they may not have anything to do with what is contained within the four corners of the particular collective bargaining agreement at issue.

In order for a dispute to be substantively arbitrable, the parties (i.e., the employer and the union) must have agreed at some time in the past to arbitrate it through the terms of the collective bargaining agreement.  Binding contractual arbitration exists because the parties have either agreed to its existence or a conciliator has imposed it in some previous conciliation award.

In AT&T Technologies v. Communications Workers, the Supreme Court held:

The first principle gleaned from the [Steelworkers] Trilogy [of cases] is that ‘arbitration is a matter of contract and a party cannot be required to submit to arbitrate any dispute which he has not agreed so to submit.’  (citation omitted)  This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration….[2]

Unless the parties, through the existing contract language, agreed to submit a dispute to binding arbitration, there is a chance that it is in fact, not arbitrable.  If certain subject matter is not specifically referred to or dealt with in the labor contract, then the employer may attempt to refuse to arbitrate and could be justified in doing so.

Who Decides What Is Substantively “Arbitrable?”

Generally speaking, it should be the arbitrator who decides what is within the jurisdiction of the arbitration provisions of a collective bargaining agreement.  Unfortunately, some employers take it upon themselves to “determine” that a matter is not arbitrable, thus forcing the union to file a law suit to compel the employer to arbitrate.  As a practical matter, these procedures are particularly prevalent when dealing with employers who are difficult in the first place; i.e., those employers who are offended by the mere concept of having to do business with their employees in a collective manner.

Luckily, substantial amounts of case law exist which place the question of arbitrability squarely in the hands of the arbitrator when there is mention of the subject matter in the collective bargaining agreement.  In Steelworkers v. American Manufacturing Co., the U.S. Supreme Court stated:

The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator.  It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.  Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator.  In these circumstances the moving party should not be deprived of the arbitrator’s judgment, when it was his judgment and all that it connotes that was bargained for.[3]

The Court continued:

The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim.  The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.  The processing of even frivolous claims may have therapeutic value of which those who are not a part of the plant environment may be quite unaware.[4]

When there is not language in the collective bargaining agreement related to a particular matter in dispute, the parties may be forced to litigate the subject matter arbitrability in court.  A court may determine that a grievance is appropriate for arbitration, or a court may determine that the matter in dispute has nothing whatsoever to do with the terms of the collective bargaining agreement and may decline to order an arbitration hearing.

Procedural Challenge to Arbitrability

Aside from the subject matter challenge to arbitrability, an employer may also raise the idea that a matter is not procedurally able to be arbitrated.  These challenges may include failure to timely raise or process a dispute.  There may also be an allegation that a matter is not ripe to be arbitrated, meaning that no harm has occurred, even if there may be harm in the future.  The essence of a procedural challenge is to determine whether the rules of the road have been followed.  If they have, then the matter is arbitrable, if they have not, then the matter may not be subject to arbitration.

Unlike substantive challenges which sometimes require the intervention of a court to determine whether a dispute should be arbitrated, procedural challenges are generally left to the arbitrator and only the arbitrator to decide.

A work published under the authority of the American Bar Association’s Section of Labor and Employment Law explains:

In respect to the determination of procedural arbitrability, the Supreme Court has ruled that questions of procedural arbitrability are for arbitrators to decide and not for the courts.  When a court has determined that the subject matter of a dispute is arbitrable (substantive arbitrability), the arbitrator is to decide all procedural questions that grow out of the dispute and bear on its final disposition.[5]

There is good reason for this principle.  First, having an arbitrator decide whether a grievance is procedurally arbitrable saves considerable time and expense as compared to the court system making that determination.  Second, arbitrators can be expected to exercise the type of industrial relations experience that the parties contemplated when they provided for arbitration in the first place.[6]  The ABA’s publication continued:

An American Bar Association committee has stated that ‘the function of the arbitrator to decide whether or not an allegation of nonarbitrability is sound could be compared to that of a trial judge who is asked to dismiss a complaint on motion for a directed verdict or for failure to state a cause of action.  This analogy indicates that a preliminary decision relating to arbitrability by the arbitrator is an inherent part of his duty.’  That arbitrators are capable of self-restraint is evidenced by the committee’s conclusion, based on examination of many awards, that ‘arbitrators generally are well aware of the limitations of their authority and scrupulously try to avoid any transgression of those limitations.’[7]

What Does All Of This Mean?

Overcoming both a subject matter challenge and a procedural challenge to arbitration gets one’s foot in the door to allow for a determination on the merits of the case.  Most arbitration matters are not challenged in the manner described in this article, but some are.  It is important for the OPBA’s membership to understand that getting from the point of dispute into the arbitrator’s hearing room may not be a given and it may not necessarily be a smooth ride.

As with any dispute or grievance, first check with your OPBA Director and your OPBA staff representative to help assess the best

[1] U.S. Const. amend I.

[2] AT&T Technologies v. Communications Workers, 475 U.S. 643, 121 LRRM 3329 (1986).

[3] Steelworkers v. American Manufacturing Co., 363 U.S. 564, 46 LRRM 2414, 34 LS 559 (1960).

[4] Id.

[5] Elkouri & Elkouri, How Arbitration Works, 6th Ed., Alan Miles Ruben Editor-In-Chief, American Bar Association (2003) at 283-284.

[6] Id.

[7] Id. at 285.

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