Berklee College of Music v. Berklee Chapter of Massachusetts Federation of Teachers, Local 4412, AFT, AFL-CIO, AFL-CI

• Decision Date: 08 June 1988
• Docket Number: AFL-CI,No. 88-1073,D,88-1073
• Citation: 858 F.2d 31,129 LRRM 2465
• Parties: 129 L.R.R.M. (BNA) 2465, 57 USLW 2264, 109 Lab.Cas. P 10,731 BERKLEE COLLEGE OF MUSIC, Plaintiff, Appellee, v. BERKLEE CHAPTER OF the MASSACHUSETTS FEDERATION OF TEACHERS, LOCAL 4412, AFT,efendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 31

858 F.2d 31

129 L.R.R.M. (BNA) 2465, 57 USLW 2264,

109 Lab.Cas. P 10,731

BERKLEE COLLEGE OF MUSIC, Plaintiff, Appellee, v. BERKLEE CHAPTER OF the MASSACHUSETTS FEDERATION OF TEACHERS LOCAL 4412, AFT, AFL-CIO, Defendant, Appellant.

No. 88-1073.

United States Court of Appeals First Circuit.

Heard June 8, 1988.

Decided Sept. 27, 1988.

Rehearing and Rehearing En Banc Denied Feb. 9, 1989.

Jeffrey W. Jacobsen, Associate Counsel, Boston, Mass., for defendant, appellant.

Paul V. Lyons with whom R. Michael Cassidy and Foley, Hoag & Eliot, Boston, Mass., were, on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and ACOSTA, ^* District Judge.

BREYER, Circuit Judge.

The appellant union, representing Joyce Lucia, a part-time teacher at the Berklee College of Music, asked an arbitrator to resolve Lucia's grievance against the school, a grievance based upon the College's refusal to hire Lucia full time. The College pointed out to the arbitrator that the collective bargaining agreement, which provided for arbitration, specified that grievances (like this one) that originate "from an action outside a particular department or division ... must be presented in writing to the Dean of Faculty within ten (10) calendar days after the action to be grieved occurred." The College also pointed to the undisputed fact that the union did not file its written grievance with the College dean until 14 or 15 days after "the action to be grieved" (the denial of full-time status) occurred. The College asked the arbitrator to find that this procedural failing barred consideration of the merits of the grievance.

The arbitrator noted that the contract did not specify the legal consequence of a late filing; from that he inferred that he had the authority to overlook de minimis violations; and he found the present violation de minimis because the contract was in its first year, Lucia might have thought she was supposed to proceed under a different provision (for grievances originating within a department) with a fifteen day time limit, and the delay (4-5 days) did not harm anyone. The arbitrator therefore concluded that the merits of the grievance were arbitrable.

The College then asked the district court to set aside the arbitrator's order, 29 U.S.C. Sec. 185 (1982), as outside the limits of the authority granted him by the collective bargaining agreement. See, e.g., United Paperworkers International Union v. Misco, Inc., --- U.S. ----, 108 S.Ct. 364, 370-72, 98 L.Ed.2d 286 (1987); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960). The district court, finding the contractual language clear, granted the College's request. The union now appeals.

Since the time the district court decided this case, the Supreme Court has reiterated, in language stronger than previously used, that matters of contract interpretation are typically up to the arbitrator, not the courts. Misco, supra. The Supreme Court explained that an "arbitrator's award settling a dispute with respect to the interpretation or application of a labor agreement must draw its essence from the contract and cannot simply reflect the arbitrator's own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." Misco, 108 S.Ct. at 371. We have characterized this language as specifying that any "exception" to the normal rule (that forbids the court to find an arbitrator's interpretation outside the authority delegated to him by the contract) is extremely narrow. S.D. Warren Company v. United Paperworkers' International Union, AFL-CIO, Local 1069, 846 F.2d 827, 828 (1st Cir.1988).

Only the narrowest of exceptions could exclude this arbitrator's interpretation, for not only does the contract say that the union "must" bring the grievance within 10 days, but it also says that "time limits" such as this one "may only be waived by mutual written consent," a consent that here was not forthcoming. Nonetheless, taking the Supreme Court at its word, we uphold the arbitrator's decision because we find a plausible argument that favors his interpretation. That argument runs as follows.

First, the contract rule in question concerns procedural time limits, and the Supreme Court has recently reiterated that "rules of procedure should be liberally construed and ... 'mere technicalities' should not stand in the way of consideration of a case on its merits." Torres v. Oakland Scavenger Company, --- U.S. ----, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988) (quoting Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962)); see, e.g., Houston v. Lack, --- U.S. ----, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Sometimes, as with the federal procedural rules, a separate rule specifically grants to a court the power to extend time limits imposed by other rules. See, e.g., Fed.R.Civ.P. 6(b); Fed.R.App.P. 26(b). In other instances, however, courts construe absolute-sounding language (say, in a statute of limitations) against a background of judicially created exceptions. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (Title VII filing deadline ("A charge under this section shall be filed within one hundred and eighty days...." 42 U.S.C. Sec. 2000e-5(e) (1982) (emphasis added)), "like a statute of limitations, is subject to waiver, estoppel, and equitable tolling."); Bailey v. Glover, 88 U.S. (21 Wall.) 342, 348-49, 22 L.Ed. 636 (1874) (similar holding in respect to statute of limitations in Bankruptcy Act of 1867) see generally Cerbone v. International Ladies' Garment Workers' Union, 768 F.2d 45, 48-50 (2nd Cir.1985) (explaining basis for tolling of filing deadline under the ADEA ("a charge shall be filed within 180 days ..." 29 U.S.C. Sec. 626(d) (1982) (emphasis added)).

Arbitrators have read such exceptions into literally absolute-sounding time limits in labor contracts; sometimes they have done so in light of the parties' own history of practice, Peru Foundry Co. 73 LA 959, 960 (Sembower, 1979), but sometimes not, International Paper Co., 82 LA 306 (Williams, 1984). This background suggests that the parties may not have meant by the contract's word "must" that failure to comply always, automatically bars a grievance, no matter what the circumstances. After all, would the time limit not have been extended had the employer, say, through trick, prevented the filing of the grievance? See Cerbone, supra.

Second, it is not difficult to find other, more specific language the parties might have used had they intended to deprive the arbitrator of the power to make 'de minimis ' exceptions. As the arbitrator here noted, some labor contracts do contain express provisions that noncompliance with a particular time limit means the grievance will "be considered settled." See, e.g., Detroit Coil Company v. International Association of Machinists & Aerospace Workers, Lodge # 82, 594 F.2d 575 (6th Cir.1979) (contract says, "Unless ... the Company is notified within eight (8) working days ... the grievance ... shall be considered settled."). Indeed, the contract here at issue does contain such a provision in respect to appeals of grievances (in the pre-arbitration stage of the process). It says:

The [Division Chairperson's] answer will be deemed to be the final resolution [of a Step 2 grievance] unless appealed within ten (10) calendar days from the date of the answer.

(Emphasis added.) This passage concerns grievances filed in accordance with Step 2, and appealed to Step 3. Similar language controls appeals from Step 1 to Step 2, and from Step 3 to Step 4. But, this language does not cover grievances, like this one, initiated at Step 3. The contract shows that the parties knew how to specify more strongly that missing a deadline would bar further consideration of the grievance. And, it is at least conceivable that one might want to hold a grievant more strictly to procedural rules once he has begun the grievance process.

Third, the contract's statement that the time limits "may only be waived by mutual written consent," is less clear than may at first appear. The union argues that the language is meant to apply to waivers by the parties, not remedies or exceptions applied by the arbitrator. It adds that the purpose of the clause is to prevent a grievant from claiming that the company orally waived the time limit; rather, the grievant, to show waiver, would have to produce a written waiver signed by the company. As so interpreted, this "exceptions" clause would not apply where the arbitrator, in effect, excused noncompliance not because of "waiver," but because of, say, inequity or the de minimis nature of the violation.

Fourth, the contract here differs significantly from that in S.D. Warren, where we applied the Misco exception. In S.D. Warren, the contract said that management had the "sole right" to dismiss a person who violated Mill Rule 7, and the arbitrator found that the employees had violated Mill Rule 7. We could not think of a way to express more clearly than through the use of the words "sole right" the fact that it was up to management, not the arbitrator, to decide whether or not to dismiss the employee. Here, by contrast, the arbitrator and the union point to a fairly obvious way (a way used elsewhere in this very contract) to express clearly that failure to meet the filing deadlines bars further consideration of a grievance.

Whether we would find these arguments convincing were it up to us to interpret the contract is beside the point. The question is whether these arguments make the arbitrator's interpretation plausible. We can imagine some judges or arbitrators accepting these arguments (without stretching...