Substantive Arbitrability Objection Not Waived By Participation In Grievance Procedure

The law distinguishes between alleged defects in “procedural arbitrability” and “substantive arbitrability.” Defects in “procedural arbitrability” relate to a party’s failure to comply with procedural requirements for arbitration. Normally, claims of procedural arbitrability involve allegations that a grievance was not filed or advanced through the grievance procedure steps in a timely fashion, or that the grievance was not written in a manner required by the contract.

Claims of “substantive arbitrability” relate to whether the grievance was even subject to the arbitration process. A claim of lack of substantive arbitrability is a claim that the grievance simply does not arise under the collective bargaining agreement.

In a case involving the Village of Scarsdale, New York and the Uniformed Firefighters Association, an arbitrator ruled that claims of a lack of substantive arbitrability are not waived simply because an employer participates in the early steps of the grievance procedure. This rule is different than that for “procedural arbitrability,” where, if an employer accepts and processes a defective grievance, it will likely be held to have waived any ability to claim defects in “procedural arbitrability.”

The Scarsdale case involved a probationary firefighter who protested when he was not granted a salary increase on his first anniversary date of employment. The collective bargaining agreement did not allow probationers the right to access to the grievance procedure.

The Village received the grievance and duly processed it through the early stages of the grievance procedure. However, when the grievance reached arbitration, the Village claimed that it was not substantively arbitrable. The Association rejoined that the Village had waived the right to claim the defect in arbitrability.

An arbitrator sided with the Village. The Arbitrator found that claims of defects in substantive arbitrability are never waivable, and that “the employer’s participation in the scheduling and convocation of the arbitration process and the arbitration hearing do not thereby operate to waive the employer’s right to raise the non-arbitrability issue.”

On the merits of the case, the Arbitrator ruled that since the firefighter was probationary, he had no right to access to the grievance procedure to challenge the discrepancy in his pay, and rejected the grievance.

Village of Scarsdale, New York and Uniformed Firefighters Association, LAIG 6250 (Gregory, 2004).

This article appears in the September 2005 issue