Arbitrator Has Right To Decide Timeliness Dispute

The collective bargaining agreement between the State Police Association of Massachusetts and the State of Massachusetts contains an arbitration clause. On December 31, 2002, a State Police detective sergeant assigned to the Worcester district attorney’s office filed a grievance alleging that the Department had failed to pay him for overtime worked. When the grievance was denied, the Association appealed to arbitration.

The parties agreed to bifurcate the matter and to limit the first step in the arbitration to the issue “What shall be the scope of the grievance?” – that is, whether the grievance encompassed only the few detectives assigned to the Worcester district attorney’s office or all of the roughly 500 similarly situated detectives in the Department’s division of investigative services. The Arbitrator concluded that the Association “shall not be precluded from challenging the issue of overtime work for those Troopers assigned to the State Police Detective Unit.” He ordered that a hearing on the merits of the grievance be scheduled.

Instead, the Department applied to the Superior Court to vacate the Arbitrator’s award, arguing that the Association’s appeal from Step I to Step II of the grievance procedure had been untimely. In his written decision, the Arbitrator did not address the issue of when the Association received the Step I decision; whether the Association’s appeal to Step II was timely filed; whether the Department raised the issue of timeliness at the arbitration hearing; or whether the Arbitrator found that the Department had waived the issue by not raising it prior to the arbitration hearing.

The Massachusetts Appeals Court turned away the State’s challenge to the Arbitrator’s award. As the Court analyzed it: “The first question is whether the Arbitrator had the power to decide two issues: First, whether the appeal from Step I was timely filed, and second, whether the Department waived the timeliness argument by not raising it prior to the arbitration proceeding. It is clear that the Arbitrator did have that power. Only those contracts with arbitration clauses that expressly preclude arbitrators from deciding gateway procedural disputes will support judicial intervention. Here, the CBA language prohibiting the Arbitrator from adding to, subtracting from, or modifying a contract provision cannot reasonably be read as expressly precluding arbitrators from deciding gateway procedural disputes, such as timeliness.

“The second question is whether the Department waived the issue of the timeliness of the Step I appeal. The Association asserts that the Department raised the timeliness issue for the first time ‘when it filed suit in Superior Court to vacate the Arbitrator’s decision.’ If so, the argument was waived – at least as of the time that the Department agreed the issue at the arbitration hearing would be whether the eventual arbitration would control only the Worcester detectives or all of those in the division of investigative services.

“On the other hand, the Department maintains that the issue of timeliness was raised before the Arbitrator and that he decided the issue was waived. In that case, the Arbitrator’s decision must be upheld, at least on that issue. The timely filing of a grievance is a ‘procedural’ question. It is for an arbitrator, not a court, to resolve a procedural question that grows out of and bears on a final disposition of a labor dispute encompassed by the parties’ agreement.”

Department of State Police v. State Police Ass’n of Massachusetts, 2010 WL 4723431 (Mass. App. Ct. 2010).

This article appears in the February 2011 issue