NPMHU Local 308 represents approximately 2,200 USPS mail handlers in Eastern Pennsylvania, Delaware, and Southern New Jersey.

NPMHU and USPS are parties to a national collective bargaining agreement (“CBA”), The CBA provides a detailed four-step procedure for processing and deciding grievances lodged by the union.

The CBA requires the union to appeal or otherwise escalate a grievance to the next step within certain time limits. If it does not do so, the grievance is considered waived. If USPS does not raise the union’s untimeliness, however, it waives that defense as a basis for dismissing the grievance. In the event the parties are unable to resolve the grievance at one of the early stages of the process, the CBA provides for arbitration before a neutral arbitrator.

On March 12, 2008, Local 308 filed a grievance asserting that USPS had breached the CBA by hiring casual employees in Philadelphia. After the parties entered into a written agreement to extend the Step 1 time limits until March 13, 2008. USPS never rendered a Step 1 decision so the union moved the grievance to Step 2 on March 25, 2008. The union asserts that after a Step 2 meeting on June 2, 2008, the parties informally agreed to meet again and to extend the time limit for moving the grievance to Step 3. But the parties never entered into a written agreement to extend the Step 3 time limits. If they adhered to the CBA’s time limits, USPS would have had to issue a Step 2 decision by June 12, 2008. The union would have had until June 27, 2008 to appeal to Step 3, even without a decision letter from USPS, pursuant to Article 15.3.C of the CBA. The union never heard back from USPS about another meeting or with a formal response. The union appealed the grievance to Step 3 on September 12, 2008—more than two months late. On September 15, a USPS management representative issued a Step 2 decision denying the grievance because the union’s appeal to Step 3 was untimely. Several months later, on January 20, 2009, the USPS Step 3 designee issued a decision which denied the merits of the grievance but did not mention the union’s failure to move the grievance to Step 3 in a timely manner.

The grievance then proceeded to arbitration. USPS argued before the arbitrator that the matter was not arbitrable because the union missed the Step 3 appeal deadline, there was no mutual extension of the deadline, and it never waived the union’s untimeliness as a defense. The union responded that USPS had waived any untimeliness argument because the USPS Step 3 designee did not mention it in his decision letter. After a hearing, the arbitrator on July 26, 2013 issued an eleven-page decision dismissing the grievance based on the union’s untimely appeal to Step 3. The arbitrator found that there was no mutual agreement on an extension and, therefore, the union was bound by the timeframe outlined in the CBA. Even without a Step 2 decision letter, the arbitrator found that the onus was on the union to move the grievance to the next step in a timely manner. The arbitrator further determined that NPMHU’s untimely appeal resulted in the creation of two different and incomplete case files for the same grievance. As a result, the arbitrator found that the USPS representative who drafted the Step 3 decision letter was not aware that the union’s Step 2 appeal had been untimely. These unique circumstances led the arbitrator to excuse USPS’s failure to raise a timeliness defense in its Step 3 response. Accordingly, the arbitrator concluded that the “Union’s actions were unreasonable and inconsistent with the requirements of the National Agreement when it waited three months to appeal the case to Step 3.”

Arbitrator’s Decision
As stated by Arbitrator Cenci, “As the moving party, the Union has the responsibility to ensure that the case (proceeds) through the grievance process in a timely fashion at each step.” (p. 10, Cenci cited above) When management did not issue a Step 2 following the Step 2 meeting on June 2, the Union had the option of properly progressing it to Step 3 under Article lS.3.C. The Service raised the argument of procedural timeliness in its Step 2 Answer. The fact that it was not raised thereafter in the Step 3-under the unique circumstances of this case does not constitute a waiver of timeliness by the Service. Union’s actions were unreasonable and inconsistent with the requirements of the National Agreement when it waited three months to appeal the case to Step 3.

The union filed a suit against USPS seeking to vacate the arbitrator’s decision and proceed to the merits of the grievance. It has sued under 39 U.S.C. § 1208(b), which permits suits in federal district courts for breaches of contracts between USPS and its employees’ unions. USPS argued that the union’s case should be dismissed and therefore confirm the arbitration award.

The union argued that the arbitrator did not draw his award decision from the “essence” of the CBA and ignored the express language of Article 15.3.B, which provides that “if the Employer fails to raise the issue of timeliness . . . such objection to the processing of the grievance is waived.” USPS countered that the arbitrator was required to resolve two conflicting provisions of the CBA because NPMHU’s failure to timely appeal resulted in duplicate and incomplete case files and prompted USPS not to respond to the timeliness issue. Given that the Court need only consider whether the arbitrator “even arguably constru[ed]” the CBA, the Court found that there was no basis for overturning the arbitrator’s decision.

The question becomes why USPS created two separate files. USPS Step 2 designee’s late Step 2 decision letter addresses the Step 3 appeal.

Although it is undisputed that USPS did not raise a timeliness objection in its Step 3 response, the arbitrator found that USPS’s silence on this issue was a direct result of NPMHU’s failure to lodge a timely Step 2 appeal.(note: The issue is timeliness of STEP 3 APPEAL–NOT Step 2)

In his opinion, the arbitrator reviewed the provisions of the CBA, considered similar factual situations, and analyzed other arbitration determinations. The arbitrator determined that improper notification and untimely response on the part of the union excused USPS’s failure to raise the issue of timeliness in its Step 3 response and, as a result, the grievance was not arbitrable.

The arbitrator adequately described his conclusion and rooted its logic in the provisions of the CBA and the actions of the parties. He did not create “his own brand of industrial justice.Because the arbitrator construed the terms of the agreement, his determination satisfies the deferential standard that applies to this Court’s review of labor arbitration awards. The Court will therefore defer to his finding that the grievance was not arbitrable.