Arguments Not Raised In Grievance Procedure Cannot Be Raised For First Time In Arbitration

While the collective bargaining agreement between the City of New Kensington, Pennsylvania and the Wage Policy Committee of the City of New Kensington Police contains no clause directly dealing with the Family and Medical Leave Act (FMLA), the contract does contain a past practices clause. In 1999, the City changed its policies to require that employees use FMLA leave concurrently with the use of paid leave. In 2006, the Police Chief enforced the City’s new policy with respect to a pregnant police officer. The Union filed a grievance challenging the City’s decision.

The Arbitrator ruled that the Union did not properly raise its FMLA arguments in the early stages of the grievance procedure. The language of the contract specifically provided that “no arguments may be introduced at an arbitration proceeding which were not presented in writing at some previous level of the grievance procedure.” Though the Union argued at arbitration that the City’s FMLA policy was improperly and unilaterally changed, and that there had been a practice binding on the City of allowing employees to use paid leave consecutively with FMLA leave, neither argument was actually presented in writing through the grievance procedure.

While the Arbitrator recognized that “a general proposition exists that favors arbitration over dismissal of grievances on technical grounds, and while it is well accepted that union representatives are not held to the same standards in the drafting of grievances as are attorneys, in cases such as this one, where the parties’ agreement contains specific language regarding a requirement that arguments be raised in the grievance procedure, the grievance must be denied when the procedures required by the specific language are not followed.”

City of New Kensington, 124 LA 458 (McDowell, 2007).

This article appears in the March 2008 issue