Employer’s Beliefs About Grievability No Excuse For Not Processing Grievance

New Castle County, Delaware is party to a collective bargaining agreement with Lodge 5 of the Fraternal Order of Police. On June 27, 2017, Lodge 5 filed a timely grievance on behalf of a probationary officer terminated by the County. The County responded by refusing to “recognize” the grievance and failing to schedule a Step II grievance hearing “or any other hearing associated with the officer’s dismissal.”

Lodge 5 filed an unfair labor practice complaint with Delaware’s Public Employment Relations Board. The complaint alleged that the County had wrongly failed to process the grievance, and in so doing had unilaterally changed a mandatory subject of bargaining.

The Board agreed with Lodge 5, and found that the County’s actions were illegal. The Board reasoned that “it is well established in Delaware case law the grievance procedure is a mandatory subject of bargaining and may not be unilaterally changed by either party, either overtly or by inaction. The grievance procedure lies at the heart of the continuous collective bargaining process and is the vehicle through which the negotiated collective bargaining agreement is defined and refined during the life of the agreement.

“For the collective bargaining process to have meaning, the parties have a statutory good faith obligation to follow the negotiated grievance procedure consistently and strictly in accordance with the contractual terms. The negotiated grievance procedure may not be modified or ignored unless the parties have mutually agreed to do so.

“Absent agreement to the contrary, the parties are bound by the clear and unambiguous terms of their negotiated agreement which dictates the manner and schedule for processing grievances. When the County chooses to unilaterally ignore its obligation to process grievances through the negotiated procedure, it violates its duties and obligations under the law.

“Based on the uncontested facts as admitted by the County and the precedent of this Board, it is determined that the County has unilaterally modified the terms and conditions of employment and a mandatory subject of bargaining by failing and refusing to process the grievance at issue in this charge through the contractual procedure set forth in the current collective bargaining agreement. The County is hereby directed to cease and desist from failing or refusing to abide by the terms of the negotiated grievance procedure and to immediately schedule the grievance.”

Fraternal Order of Police v. New Castle County, 2017 WL 6819273 (Del. PERB 2017).