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the possible violation was not brought up until
the arbitration hearing smacks of unfairness. The
carefully drawn class grievance has been in the
pipeline for two years and the possible FLSA
violation by the employer should have been
brought before the hearing. The arbitrator does
not wish to categorically hold that every issue
must always be explicitly raised in the initial
grievance. Many times grievances are drawn by
persons who are untutored in specificity.
Holding such persons to highly formalistic rules
is unfair; pleading by inference in such cases is
just. Even if the Union’s charge that the
employer violated the FLSA was timely, the
arbitrator would still decline to rule on that issue.
The interpretation and the incorporation of the
FLSA is beyond the competence of the
arbitration process. FLSA rights are “better
protected in a judicial rather than an arbitral
forum.” Barrentine v. Arkansas Best Freight
Systems J. Brennan. 345
The timelines of the Agreement are clear and
mandatory. A grievance filed at Third Step must
be filed within fourteen days of notification. In
the event the deadline is missed the grievance is
deemed withdrawn. 347
If the grievant or the Union had some misgivings
regarding the Step 2 outcome, they had an
affirmative duty to present the employer with a
grievance in writing within ten days of the Step 2
response. Nothing in the record indicates that
the parties mutually agreed to extend the time
limits. The grievant received and partially
concurred with the Step 2 response and yet he
waited approximately a year to formally raise his
concerns with the Labor Relations Officer. A
subsequent event, when the grievant tried to
refile his request for travel allowances could be
said to again start the thirty day grievance time
limit. The grievant did not file within thirty days
of this event. The arbitrator found that the
settlement of the grievant’s claim served as a
settlement for all similarly situated employees.
351
The untimely Step 3 grievance is deemed
withdrawn and is not arbitrable. The arbitrator
was reluctant to summarily dismiss grievance
son purely technical grounds. At the same time,
he recognizes his limitations. The arbitrator does
not have the power to dispense justice or fairness
if doing so would violate the Agreement. 353
The arbitrator rejected the employer’s position
that since the grievants accepted their employer’s
mileage limitation policy for four weeks they
therefore waived their right to grieve. Each time
the grievants were not reimbursed for their
mileage a new grievable event occurred. That
nearly four months of these events took place
before a grievance was filed does not make a
reoccurrence in the fourth month unarbitrable.
What matter is whether the grievance was filed
within the time limitations of any one of the
events. The denial of mileage reimbursement is
held to be a continuing act and since the grievant
filed ten days following the last in the series, it
was timely and therefore arbitrable. 355
The way in which the agency controlled the
hearing and the speed with which it imposed the
removal indicate a cavalier approach to just
cause requirements. The question the employer
was obliged to ask and answer before deciding
on discipline was: In view of the misconduct, its
aggravating and mitigation factors, what amount
of discipline is likely to be corrective? When an
employer acts against an employee precipitously,
in knee jerk fashion, its actions become suspect.
Summary discipline opens the door for arbitral
intrusion. It licenses the arbitrator to substitute
his/her judgment for management’s. It is up to
the arbitrator to perform the employer’s job
when the employer fails to perform it. Second
guessing by an arbitrator should be expected
when management neglects its disciplinary
duties. 357
The grievant’s basis of refusal to return to work
was that he was under a doctor’s care and the
doctor had not yet ordered him back to work. For
his same injury three separate specialists agreed
the grievant could return to work. Another
reason the grievant gave was that he was under
medication and could not drive. The grievant
could not support either excuse. The mere fact
that drugs were prescribed does not prove that
the doctor ordered them used to such an extent
that the grievant could not drive. There was just
cause for the grievant’s removal. 359
The case was determined to be arbitrable since
the notifying event was the purging of the
overtime rosters. This caused the grievant to be
aware that any inequity in the past overtime
distribution could not be rectified through
additional overtime opportunities. Until the
grievant saw the posting he relied on assurances
by management that his overtime would be