By Jim Cline
A recent decision by PERC hearing examiner in Lake Washington School District and described in more detail in our recent blog article serves as an important reminder to pay close attention to all timelines. Although this decision arose in the context of an unfair labor practice complaint and PERC six-month statute of limitations, the same lesson applies in the processing of grievances under your labor contract.
In Lake Washington School District, the union was notified of the employer intent to eliminate bargaining unit positions. Despite the employer’s announced intention to act, the Union did not act. It then learned of the full implementation of the announced change in June and waited until December to file the ULP, one week past the expiration of the 6 month filing period. It then argued that the time started running when the change was implemented, not when it was announced.
The union, by arguing that the date ran from the full implementation of the objectionable change, not the announcement, clearly was trying to salvage something here, so it could get its ULP heard on the merits. Although there may be some legal merit in their argument as to what the “trigger” date is that would start the running of the 6 month clock, the lesson here is that you should always take a conservative view about when your “clock” starts to run.
That same lesson applies to grievances under your labor contract. Sometimes it isn’t always clear what the “triggering” event is that starts the grievance timelines running. But you should take a conservative approach to that question. If you miss the first “trigger” event deadline, you might be able to get away with arguing that it’s a “continuing violation” or that the later “trigger” event is what matters, and often you might get an arbitrator to take a sympathetic view on that. Arbitrators often will bend over backwards to avoiding declaring a grievance has been “forfeited” due to a late filing.
But PERC clearly does not. This is not the first case that a PERC hearing examiner has taken a restrictive view on timeliness and it won’t be the last. The 6 month time deadline is deemed by PERC to be “jurisdictional” which means they have no authority to bend it.
So the lesson is this:
Whether you have a grievance or a ULP issue, figure out when a “change” or “violation” has occurred and the date is ambiguous because multiple events are involved, take the conservative step of applying the earlier date and file your grievance or ULP by that date.
